Posted by: Patricia Salkin | September 11, 2017

PA Appeals Court Finds Municipalities Planning Code Created a Vested Right for Pending Plans

In 2008, Cheltenham Township amended the Cheltenham Code by enacting a zoning ordinance that created an Age Restricted Overlay District. In 2010, the Township repealed the 2008 Ordinance, and an age-restricted overlay district did not exist in Cheltenham Township for two years. In 2012, the Township enacted a new ordinance reinstating an Age Restricted Overlay District with more stringent dimensional criteria than the 2008 Ordinance.

In this case, the Board of Commissioners of Cheltenham Township appealed from an order of the Court of Common Pleas of Montgomery County, which affirmed a decision of the Cheltenham Township Zoning Hearing Board (ZHB), granting Developer Hansen–Lloyd, L.P.’s application for special exception and other zoning relief to construct an age-restricted housing development on its property. In granting the zoning relief, the ZHB applied the ordinance in effect when Developer filed its sketch plan, rather than the later-adopted ordinance in effect when it filed the application for zoning relief. The question for the court was therefore whether, under the Municipalities Planning Code (MPC), the filing of a mandatory sketch plan created a vested right for consideration of the plan as well as any related future zoning applications under the ordinance in effect when the sketch plan was filed.

Here, the record reflected that when the Developer submitted the mandatory sketch plan, the 2008 Ordinance was in effect. Although the Developer did not seek zoning relief until May 2015, the Developer’s sketch plan for its land development was still pending before the Township. Developer stipulated its application would not meet the zoning criteria under the 2012 Ordinance for special exception; however, because Section 508(4) of the MPC protected applications from adverse zoning changes, the court held that the ZHB properly determined that the 2008 Ordinance governed.
The Township next argued that, under the 2008 Ordinance, Developer was required to provide 50 feet for the building setback and 50 feet for the parking setback. However, the court rejected this contention, finding the 2008 Ordinance did not require a setback from a municipal boundary line, and municipal boundary lines did not constitute property lines for purposes of setbacks. Furthermore, the court found that the ZBA did not exert any control over land located in another municipality in making this determination. As such, the ZBA’s holding was affirmed.

Board of Commissioners of Cheltenham Township v Hansen-Lloyd, 166 A, 3d 496 (PA Commwlth 7/6/2017)


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