Commonwealth Court Update: Preliminary Opinions and Development Rights

The Legal Intelligencer

(by Krista-Ann Staley)

The Pennsylvania Commonwealth Court, the statewide intermediate appellate court that hears and decides land use appeals, took a temporary hiatus from issuing opinions while the Unified Judicial System of Pennsylvania adapted to the COVID-19 pandemic. During the hiatus, the Commonwealth Court: closed to the public for all nonessential functions through April 30, in accordance with a series of orders from the Pennsylvania Supreme Court; cancelled its March argument session in Harrisburg, indicating that it would decide all cases listed for argument on briefs unless a party requested an oral argument; extended certain filing deadlines under the Pennsylvania Rules of Appellate Procedure and deadlines for briefs, petitions, motions and applications for pending matters for 30 days; cancelled its April argument session in Harrisburg; relocated its May argument session from Pittsburgh to Harrisburg; and announced the May argument list. The Commonwealth Court then resumed posting opinions April 7, and is expected to work through a backlog of cases while its operations remain limited.

Prior to its hiatus, the Commonwealth Court released several land use decisions, two of which addressed statutory interpretation issues through subjects that rarely come before the court: zoning officer preliminary opinions and transferrable development rights.

In Friends of Lackawanna v. Dunmore Borough Zoning Hearing Board, No. 1586 C.D. 2018 (Pa. Commw. Ct. Feb. 18, 2020), the court addressed the “preliminary opinion” procedure set forth in the Pennsylvania Municipalities Planning Code, 53 P.S. §§10101, et seq. (the MPC). That process, added as Section 10916.2 of the MPC by the act of Dec. 21, 1988, P.L. 1329, serves to advance the timeline for a substantive validity challenge and allow a landowner to “secure assurance that the ordinance …  is free from challenge” before filing a land use application. Without a preliminary opinion, an objector can only bring a substantive validity challenge after an application has been filed, when an applicant may have already invested significant time and money in preparing required plans and studies. Instead, the preliminary opinion process allows a landowner to start a timeline for a substantive validity challenge without the expense and time of developing and filing a full land use application.

The court’s recent decision in Friends of Lackawanna addresses a request by Keystone Sanitary Landfill,(Keystone) for a preliminary opinion under Section 916.2. Keystone requested the zoning officer’s opinion as to whether its planned landfill expansion complied with the zoning ordinance. Specifically, Keystone sought a preliminary opinion as to whether the zoning district’s 50-foot building height limit applied to its landfill expansion, planned to reach 1,722 feet in height. The zoning officer issued a preliminary opinion stating that the terms “building” and “building height” pertain to structures with a roof supported by columns or walls. Because the landfill had none of these features, the zoning officer concluded that the height requirement for buildings did not apply.

Friends of Lackawanna and several individuals (collectively, the objectors) appealed the preliminary opinion to the zoning hearing board. Following six days of hearings the board concluded that the objectors lacked standing to file the appeal. The board also ruled on the merits, agreeing with the zoning officer’s preliminary opinion that the landfill was not subject to the height limit because it was not a “structure.” Even if the landfill were a structure, the board held, the height restriction still would not apply because it was impossible to use the ordinance’s roof-based measurement methodology for the landfill.

The trial court affirmed the board and the objectors appealed to the Commonwealth Court. The objectors challenged the merits of the preliminary opinion, arguing the board abused its discretion and erred in holding the landfill is not a structure and the landfill is not subject to the height limit. Keystone argued the zoning hearing board lacked jurisdiction to review the zoning officer’s preliminary opinion.

The court agreed that the board lacked jurisdiction over the appeal and rejected the objectors’ arguments. First, the court rejected the objectors’ position that the board’s jurisdiction over “appeals from the zoning officer’s determination under Section 916.2” allowed the board to consider the merits of the preliminary opinion. The court relied on its opinion in Susquehanna Rheems Holdings v. West Donegal Township Zoning Hearing Board, No. 1394 C.D. 2017 (Pa. Commw. Ct. July 23, 2018) (unreported), petition for allowance of appeal denied, 207 A.3d 906 (Pa. 2019), where it held an appeal from a preliminary opinion under Section 916.2 can only raise a substantive validity challenge to the zoning ordinance. The objectors brought no such challenge in Friends of Lackawanna.

Second, the court rejected the objectors’ argument that the board could consider the merits of the preliminary opinion under Section 909.1(a)(3), which gives the board jurisdiction to hear and render final adjudications on “appeals from the determination of the zoning officer, including, but not limited to, the granting or denial of any permit … ” The court noted that the objectors did not file an appeal under Section 909.1(a)(3). It also found that a Section 916.2 preliminary opinion alone is not a “determination” for purposes of Section 909.1(a)(3). Here, Keystone had not filed a development plan or zoning application and did not secure any vested right; the opinion had no bearing on any application that Keystone may eventually file, if required. Therefore, the preliminary opinion was not a “determination” subject to appeal on the merits.

Note that the Friends of Lackawanna decision is distinguishable the court’s decision in Atul K. Amin Family Limited Partnership II v. Bethlehem Township Zoning Hearing Board, No. 921 C.D. 2010 (Pa. Commw. Ct. Dec. 10, 2010) (unreported), based upon specific ordinance language. In Atul K. Amin Family Limited Partnership II the Bethlehem Township zoning ordinance gave the zoning hearing board jurisdiction to hear and decide appeals alleging that the zoning officer “misinterpreted or misapplied any valid provision of the ordinance.” This language extended the board’s jurisdiction beyond the MPC language regarding appeals from “determinations,” as examined in Friends of Lackawanna. Based upon the explicit reference to misinterpretation and misapplication, the court held that the Bethlehem Township zoning hearing board had jurisdiction to consider the merits of a preliminary opinion and remanded the case.

The court addressed transferrable development rights, another infrequent subject of land use appeals, in Geerling Florist v. Board of Supervisors of Warrington Township, No. 470 C.D. 2018 (Pa. Commw. Ct. Feb. 12, 2020). While implementation is far from widespread, the MPC does authorize land use ordinances in Pennsylvania to incorporate transferrable development rights (TDRs). Generally, TDR programs establish credit systems that allow developers to exchange development rights related to land in preservation areas for increased project intensity on land in development areas. The tool can serve a variety of land preservation goals, including aggregation and protection of agricultural areas, natural resources, and open space.

The issue in Geerling Florist arose from the TDR program set forth in the Warrington Township (township) zoning ordinance, which permitted the use of TDRs pursuant to conditional use approval. Geerling Florist (Geerling) applied to the township for TDR approval related to a 49 single family home development in the Township’s RA-Residential Agricultural Zoning District (RA District). Geerling and the township agreed that the project would require Geerling to use TDRs from another property. However, they disagreed as to the number of credits required.

Geerling’s application to the Township stated that the 49-home project would require the developer to surrender 19 TRDs. It reached the 19 TDR result using a 30-unit cluster development plan as the “baseline” for the number of homes permitted on the property. The township board of supervisors approved the 30-unit plan, under the conditions that the subject property had to preserve 83% of the site as open space in perpetuity and the project had to preserve the “maximum amount of agricultural soils on the property” in accordance with the requirements of the cluster development provision in the zoning ordinance. The township board next considered Geerling’s 49-home TDR development plan and, after further hearings, decided it required Geerling to surrender 35 TDRs, not the 19 proposed by the developer. The township reached the 35 TDR result using the 14 homes permitted by-right in the RA District as the “baseline,” rather than the 30-units available through the cluster development process, because the 49-home plan did not meet the requirements for a cluster development.

On appeal by Geerling, the trial court held that the ordinance was ambiguous because it did not address which baseline (i.e., the number of units available in a cluster development or the number of units available under the general district requirement) applies for purposes of calculating TDRs. Pursuant to the MPC’s directive to interpret ambiguous ordinance terms in the light most favorable to the applicant, the trial court used the cluster development as the baseline for determining the number of required TDRs.

The township appealed to the Commonwealth Court, which found the ordinance was not ambiguous and overturned the trial court’s decision. According to the Commonwealth Court, the different interpretations of the zoning ordinance arose from an omission, rather than competing interpretations of the terms. Because the ordinance was not ambiguous, the landowner was not entitled to the MPC’s favorable interpretation rule. Rather, the court proceeded to apply standard rules of statutory interpretation to the township’s decision. The court ultimately found no error or abuse of discretion in the township board’s interpretation.

The Commonwealth Court will continue to post decisions through the COVID-19 outbreak and asks counsel and parties to monitor individual case dockets and the court’s website for updates.

For the full article, click here.

Reprinted with permission from the April 16, 2020 edition of The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved.