Posted by: Patricia Salkin | September 2, 2017

PA Appeals Court Reverses Holding that Developer’s Sketch Plan was Required to Comply with the Height Requirements Established in Amendments to the Zoning Code Relating to Age-Restricted Overlay Zone

In this case, 1050 Ashbourne Associates, LLC (Developer) appealed an order of the Court of Common Pleas of Montgomery County, which affirmed the decision of the Cheltenham Township Board of Commissioners to disapprove Developer’s plan for an age-restricted development in Cheltenham Township. The trial court held that Developer’s proposed development was governed exclusively by the zoning requirements of the Age-Restricted Overlay District. The trial court also affirmed the Commissioners’ disapproval of Developer’s plan because it proposed buildings that exceeded the height requirements for new construction in the Age-Restricted Overlay District. On appeal, Developer contended that the trial court erred because the height requirements in question were enacted after it filed its request for a special exception.

The court first noted that the Preservation Overlay District limited the number of dwelling units per building to eight, unlike the Age-Restricted Overlay District that did not impose a limit. The court determined that the silence in the Zoning Code authorized as many units in a single building in the Age-Restricted Overlay District as were structurally feasible and tailored to the needs of residents over 55 years of age. Thus, the Board of Commissioners erred in finding the Preservation Overlay District limitation prevailed.

The 2012 amendments to the Township’s Age-Restricted Overlay District revised the height requirement for new buildings. Developer contended that these requirements did not apply to its project because it submitted its special exception application to the Zoning Board before the amendments were enacted. The trial court disagreed, finding that under Section 917 of the MPC, Developer filed its sketch plan three months too late, and therefore lost its exemption from the 2012 height requirements. However, Section 917 of the MPC also authorized the municipality to establish a “longer” period than six months “in accordance with the provisions of the governing ordinance. Here, the Township established a longer period by enacting Section 295–211 of the Zoning Code, which gave a landowner two years from the date the special exception was granted to implement its special exception, including the completion of the planning requirements. Accordingly, the court held the Developer had two years after the trial court affirmed the grant of the special exception, to finalize its approved project. Therefore, the court found the trial court erred in affirming that aspect of the Commissioners’ decision.

1050 Ashbourne Associates, LLC v Chelteham Township Board, 2017 WL 3254493 (PA Cmwlth 8/1/2017)

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