Posted by: Patricia Salkin | September 15, 2019

PA Appeals Court Holds Failure of Township to Revise Zoning Map Did Not Render Zoning Ordinance Ineffective

This post was authored by Matthew Loeser, Esq.

Realty Enterprises, LLC and Stephen Sudhop filed a declaratory judgment action with the trial court against the Township seeking a declaration that Appellants could legally build a Continuing Care Retirement Community (“CCRC”) on their adjacent parcels of land comprising 44.6 acres. Unbeknownst to Appellants at the time they purchased the property, the Township had enacted Ordinance Nos. 2004-5 and 2004-6 on July 12, 2004, and amended its Ordinance and Map by rezoning a 22.057-acre parcel, known as Martins Run, from R-A to CCRC. Section 2 of Ordinance No. 2004-6 also directed the Township Engineer to revise the Map to incorporate this change in classification.

Appellants hired engineer James W. MacCombie, who had previously served as the Township engineer between January 2009 and December 2011 and was familiar with the Ordinance and the Township Zoning, to consult in the design and construction of a CCRC on the property. The Map, however, did not designate any area as a CCRC zoning district. Appellants believed that the absence of a CCRC-zoned area on the Map meant that a CCRC use was permitted “by right” in all Township zoning districts, including the R-A District. The trial court rejected this position, and entered a “Verdict and Declaration” in favor of the Township and against Appellants by summary dismissal.

Appellants argued on appeal that the trial court erred in characterizing this action as a validity challenge to a local ordinance. Specifically, appellants contend they were only challenging the “application” of Ordinance No. 2004-6 to their property, rather than the procedures by which the Ordinance was passed or its substantive validity. Appellants further alleged that the Township’s failure to amend its Map was analogous to the Township’s failure to record an ordinance. Nevertheless, appellants conceded that Ordinance Nos. 2004-5 and 2004-6 were duly advertised, properly posted, lawfully enacted and timely recorded in the Township Ordinance Book on the day of enactment. Moreover, the record reflected that appellants became aware of the Martins Run CCRC designation at the May 12, 2014 public meeting, in which the Township Solicitor directly advised Appellants and MacCombie that Martins Run was changed from R-A to the CCRC District by Ordinance 2004-6 in 2004. The court found that had Appellants reviewed the Ordinance Book, they would have therefore known that CCRC was permitted in the Township at Martins Run.

Further detracting from appellants’ claim was the fact that there was no language within the First Class Township Code imposing a time limit in which to accomplish changes directed by an ordinance, or any language suggesting that changes made to a zoning map by a duly enacted and recorded ordinance were ineffective until reflected on the zoning map. To the contrary, the First Class Township Code provided that “in any case in which maps, plans or drawings of any kind are adopted as part of an ordinance, the commissioners may, instead of publishing the same as part of the ordinance, refer, in publishing the ordinance, to the place where such maps, plans or drawings are on file and may be examined.” Accordingly, the court affirmed, finding that the trial court properly held it lacked subject matter jurisdiction over Appellants’ request for declaratory relief.

Realty Enterprises, LLC v. Marple Township, 213 A.3d 333 (PA Commwlth 2019)

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