Posted by: Patricia Salkin | September 27, 2019

PA Supreme Court Finds 2008 Zoning Ordinance Governed the Developer’s 2015 Zoning Application

This post was authored by Matthew Loeser, Esq.

A developer, Hansen-Lloyd, L.P. owned a large tract of land, of which approximately 10 acres were located in Cheltenham Township and approximately 33 acres were located in Springfield Township. On the property located in Cheltenham Township, the developer sought to build an age-restricted housing development consisting of: eight buildings that were four stories high, 388 parking spaces, and a clubhouse. In 2008, the developer submitted its mandatory tentative sketch plan to the Commissioners, who notified the developer that it would need to obtain zoning relief in the form of a special exception for the age-restricted housing use. The negotiations between the developer and the Commissioners concerning alternate plans for the property ultimately failed. In 2015, the developer filed a zoning application with the ZHB for the zoning relief it required to construct the age-restricted housing development on the property. During this time, the 2012 Zoning Ordinance had replaced the 2008 Zoning Ordinance. The developer sought special exceptions to permit the age-restricted housing and clubhouse uses under the 2008 Zoning Ordinance in effect at the time it filed its sketch plan.

The ZHB held that the 2008 Zoning Ordinance governed its review of the 2015 Zoning Application, which it ultimately granted. In reaching its decision, the ZHB explained that it was clear from the record that the 2008 sketch plan and the plan filed in conjunction with the 2015 Zoning Application were the same. The Commissioners appealed to the trial court, which affirmed the decision of the ZHB, and the Commonwealth Court – which likewise affirmed.

On appeal, the Commissioners argued that the developer’s 2015 Zoning Application was governed by the provisions of the 2012 Zoning Ordinance pursuant to Section 917 of the MPC. Specifically, the Commissioners contended that Subsection 508(4)(i) referred only to land development applications, not to any associated zoning applications, and thus only protected land development applications from subsequent adverse ordinance changes. Here, the 2008 Zoning Ordinance was in effect at the time the developer submitted the sketch plan; thus, pursuant to Subsection 508(4)(i), the developer was entitled to a decision on the sketch plan in accordance with the 2008 Zoning Ordinance as long as the sketch plan remained pending. The court held that the replacement of the 2008 Zoning Ordinance with the 2012 Zoning Ordinance constituted a zoning change that was adverse to the developer’s sketch plan, as the parties stipulated that the developer’s zoning requests did not meet the criteria under the 2012 Zoning Ordinance for a special exception. As such, the protection offered by Subsection 508(4)(i) shielded the developer’s sketch plan from disapproval by the Commissioners based on the 2012 Zoning Ordinance. The court therefore held that the Commonwealth Court did not err when it held that the 2008 Zoning Ordinance governed the developer’s 2015 Zoning Application. Accordingly, the order of the Commonwealth Court was affirmed.

In re Board of Commissioners of Cheltenham Township, 2019 WL 3219255 (PA 7/17/2019)

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