The Legal Intelligencer
On July 6, the Pennsylvania Commonwealth Court rendered a decision in Board of Commissioners of Cheltenham Township v. Hansen-Lloyd, 166 A.3d 496 (Pa Commw. Ct. 2017), addressing several significant land use issues, most notably that the submittal of a mandatory sketch plan creates a vested right to develop the subject property pursuant to the ordinance provisions in effect at the time the plan is submitted. The Commonwealth Court also ruled that absent ordinance language to the contrary, a municipal boundary line is not considered the property line for setback purposes, and although zoning hearing boards may not provide advisory opinions in the abstract, they may interpret a zoning ordinance in direct connection with an application for zoning relief.
Hansen-Lloyd owned a 43-acre property, with 10 acres being located in Cheltenham Township and the remaining acreage being located in neighboring Springfield Township. In 2008, Hansen-Lloyd submitted a mandatory “tentative sketch plan” under the township’s zoning ordinance proposing to construct an age-restricted housing development on the 10-acre portion. The township’s zoning ordinance in effect at that time permitted age-restricted housing developments on the property by special exception.
After reviewing the sketch plan, the county planning agency and the township advised Hansen-Lloyd that in addition to special exception approval it would need to obtain variances from the township’s setback regulations because the municipal boundary line dissecting its property constituted an imputed property line.
With its sketch plan actively pending before the township, from 2009 until 2015 Hansen-Lloyd attempted to negotiate a zoning ordinance text amendment with the township and neighboring Springfield Township to permit a single-family development on the property. If both the township and Springfield Township agreed to the amendment, Hansen-Lloyd would withdraw its plan for age-restricted housing and pursue a single-family development instead.
While negotiations with Hansen-Lloyd were ongoing, the township repealed the provisions of its zoning ordinance permitting age-restricted housing developments on the property, but reinstated them in 2012. However, the 2012 amendment imposed more stringent dimensional criteria on such developments.
In early 2015, the township agreed to amend its zoning ordinance to permit single-family developments; however, Springfield Township did not. Consequently, Hansen-Lloyd abandoned its single-family development proposal and decided to move forward with its originally proposed age-restricted housing development.
Based on the county’s and the township’s advice, in May 2015 Hansen-Lloyd submitted an application to the township’s zoning hearing board requesting special exception approval to construct the age-restricted housing development, and an interpretation that the municipal boundary line dissecting the subject property did not constitute a property line for purposes of calculating setbacks or, in the alternative, a variance from those setback requirements. Hansen-Lloyd sought its relief under the township’s 2008 zoning ordinance (i.e., the zoning ordinance in effect at the time of its original sketch plan).
The board held a public hearing on Hansen-Lloyd’s application, during which the parties disputed which version of the township zoning ordinance governed the application. Hansen-Lloyd argued the less stringent 2008 version controlled because it was the ordinance in effect when it submitted the mandatory sketch plan. Conversely, the township argued the more stringent 2012 version controlled because it was the ordinance in effect when Hansen-Lloyd submitted its zoning application.
Agreeing with Hansen-Lloyd, the board granted the requested relief. The board, relying on Section 508(4) of the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10508(4) (MPC), concluded that Hansen-Lloyd’s zoning application was protected against ordinance changes enacted after submittal of its sketch plan and therefore the less stringent 2008 zoning ordinance governed. The board also concluded that the municipal boundary line dissecting the subject property did not constitute a property line from which setbacks must be calculated.
The township appealed to the trial court, which affirmed. The township then appealed to the Commonwealth Court. Before the Commonwealth Court, the township advanced three arguments.
First, the township asserted that although the 2008 zoning ordinance controlled the processing of Hansen-Lloyd’s sketch plan, the 2012 zoning ordinance controlled the processing of its zoning application. In support of this position, the township argued Section 508(4) of the MPC only shielded Hansen-Lloyd’s sketch plan submittal, not its subsequently filed zoning application, from adverse changes in the township’s zoning ordinance. The township asserted that to interpret Section 508(4) otherwise would render Section 917 of the MPC, 53 P.S. Section 10917, as mere surplusage.
Section 508(4) is located in Article V of the MPC, which is titled “Subdivision and Land Development.” That section reads in pertinent part as follows:
Changes in the ordinance shall affect plats as follows: From the time an application for approval of a plat, whether preliminary or final, is duly filed as provided in the subdivision and land development ordinance, and while such application is pending approval or disapproval, no change or amendment of the zoning, subdivision or other governing ordinance or plan shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed …
Section 917 is located in Article IX of the MPC, which is titled “Zoning Hearing Board and Other Administrative Proceedings.” That section reads in pertinent part as follows:
When an application for either a special exception or a conditional use has been filed with either the zoning hearing board or governing body … and the subject matter of such application would ultimately constitute either a land development … or a subdivision … no change or amendment of the zoning, subdivision or other governing ordinance or plans shall affect the decision on such application adversely to the applicant, and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed.
Based on the foregoing language, the township argued the logical interpretation of both sections was to apply Section 508(4) only to plats (i.e., subdivisions and land development applications, and not later-filed application seeking zoning relief that relate to the plats), and to apply Section 917 to all applications seeking zoning relief.
The township also challenged the board’s determination that the municipal boundary line dissecting the subject property was not a property line for purposes of measuring setbacks and its authority to provide an “advisory opinion” that no setback relief was necessary absent a request for specific zoning relief.
Finding all three of the township’s arguments unpersuasive, the Commonwealth Court affirmed the trial court’s decision. In doing so, the Commonwealth Court first explained that where a mandatory step in a municipality’s land development process is the submittal of a sketch plan, the date that an applicant submits such a plan is the date on which the applicant obtains a vested right to develop its property in accordance with the municipality’s ordinances in effect at that time.
Moreover, the court found that the clear and unambiguous language of Section 508(4), which provides protection against adverse ordinance changes enacted post-submittal of a plan, extends to applications for zoning relief when such relief is necessary to effectuate the proposed development. The court explained that both Sections 508(4) and 917 can be reasonably and consistently interpreted depending on which application (i.e., subdivision and land development or zoning) is filed first. “If an applicant first files a subdivision or land development application, Section 508(4) applies; if an applicant first files an application for zoning relief, Section 917 applies.” Based on the foregoing, the court found that because Hansen-Lloyd first submitted its mandatory sketch plan, and the requested zoning relief is necessary to effectuate that plan, Section 508(4) applied. Accordingly, Hansen-Lloyd obtained a vested right in the development of its property under the township’s less stringent 2008 zoning ordinance.
With respect to the township’s second and third arguments, the Commonwealth Court ruled that “absent an ordinance provision or definition to the contrary, a municipal boundary line does not constitute a property line for purposes of setbacks ” and although the Board may not provide an advisory opinion in the abstract, it was within its authority to interpret the zoning ordinance in direct connection with Hansen-Lloyd’s application for zoning relief.
Blaine A. Lucas is a shareholder and Alyssa E. Golfieri an associate in the Public Sector Services and Energy and Natural Resources Groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. In these capacities, Lucas coordinates the firm’s representation of energy clients on land use and other local regulatory matters. He also teaches land use law at the University of Pittsburgh School of Law. Golfieri focuses her practice on zoning, subdivision, land development, code enforcement and public bidding matters. Contact them at blucas@babstcalland.com and agolfieri@babstcalland.com.
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