In an earlier decision, the PA Supreme Court held that Bedminster Township’s (hereinafter Township) Ordinance 118 (hereinafter AP Ordinance) was invalid. Six days after this ruling, Piper filed a “cure challenge” with the Bedminster Township Board of Supervisors (hereinafter Board), citing the holding and challenging the same ordinance. In its challenge, Piper proposed a new ordinance and development plans. A week after this application was filed, the Township announced the AP Ordinance was invalid. In April 2003, the Township enacted Ordinance 149 to cure the defects identified in the prior case.
From May 2003 – January 2007, the Board held over fifty hearings on Piper’s cure challenge. In March 2007, the Board concluded that Ordinance 149 cured the defects identified in the prior litigation. The Board also rejected Piper’s cure challenge finding it to be unreasonable and unsupported. The Board did note, however, that the challenge had merit insofar as it identified the same defects as the previous case, but those defects had been cured by Ordinance 149.
Piper appealed, and the trial court found for the Board. The Court held that the Township had “acted quickly” to cure the defects and this stripped Piper of any entitlement to automatic approval. Piper then appealed to the Commonwealth Court which agreed with the trial court prompting Piper to file a petition for allocatur with the Supreme Court, which was granted.
The Court addresses the “acting quickly” standard adopted by the lower courts noting that the MPC, by its plain terms, does not provide any such moratorium period. The Court points out that the Legislature repealed such a moratorium provision and has not chosen to re-enact it. Accordingly, the Court holds it was error for the lower courts to create and apply an “acting quickly” standard.
The Court next addresses Piper’s contention that the Board’s actions violated the pending ordinance doctrine.. The Court notes that the typical pending ordinance case involves a landowner seeking a building permit for a particular use permitted under the current ordinance but prohibited under a new ordinance pending when the landowner files its application. In that situation, the courts will look to the new, or pending, ordinance provided the municipality had advertised its intention to hold public hearings on the rezoning before the landowner sought the permit. The Court contrasts Casey with H.R. Miller & Co. Inc. v. Board of Supervisors stating that the former was a total de jure bar on permitted activity while the latter was a de facto ban where it was possible to amend the ordinance and permit the use by striking an unlawful exclusion without invalidating the ordinance as a whole. The Court goes on to state that in cases such as H.R. Miller it would be inappropriate to grant site-specific relief as this would create a windfall for the challenger. The Court concludes that the instant case is comparable to H.R. Miller and not Casey. The Court states that Piper is entitled to relief by elimination of the offending portions of the ordinance as applied to the entire AP District. The court then notes that this has already been done in the form of Ordinance 149. Giving site-specific relief to Piper in this case would grant a windfall beyond what is necessary to cure the constitutional defects. According to case law and statutory law, the Board must cure the defect but they are not required to provide carte blanche development rights.
Piper Group, Inc. v. Bedminster Twp. Bd. of Supers, 2011 WL 4469988 (Pa. 9/ 28/2011)
The opinion can be accessed at: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-54-2011mo.pdf
For more information about this case visit: http://hjdlaw.net/2011/11/site-specific-zoning-challenges
