Court Addresses Limitations on Approval of Planned Residential Developments

The Legal Intelligencer

(by Anna Jewart)

The requirements of a municipal zoning ordinance are strictly applied, and landowners must comply with the express use and dimensional limitations applicable in the zoning districts in which their properties are located. Landowners wishing to stray from the regulations of that district are usually forced to request relief in the form of a variance, the standards for the granting of which are quite rigorous. However, Article VII of the Pennsylvania Municipalities Planning Code, (MPC), 53 P.S. Sections 10701-10713, authorizes municipalities to enact, amend and repeal provisions within a zoning ordinance fixing standards and conditions for a “planned residential development” (PRD), a form of land development intended to offer an alternative to traditional, cookie-cutter zoning. The opinion of the Commonwealth Court in Gouwens v. Indiana Township Board of Supervisors (Gouwens II), offers an opportunity to revisit the foundations of PRD regulation and to explore the requirements for the tentative approval of a PRD. See Gouwens v. Indiana Township Board of Supervisors, Nos. 544, 992-994 C.D. 2020, 2021 (Pa. Cmwlth. July 8, 2021), publication ordered (Sept. 7, 2021)(Gouwens II), on appeal following remand of Gouwens v. Indiana Township Board of Supervisors, Pa. Cmwlth., No. 1377 C.D. 2018, (filed June 25, 2019), publication ordered (Sept. 7, 2021) (Gouwens I).

A PRD is a larger, integrated residential development that may not meet the use and dimensional standards normally applicable in the underlying zoning district. The idea behind PRD regulations is to create a method of approving large developments which overrides traditional zoning controls and permits the introduction of flexibility into their design. PRD provisions are intended to address a growing demand for housing of all types and design by promoting and encouraging flexibility in land-use regulation, innovation in residential design and layout, and more efficient use of land and public services, while insuring development is carried out under administrative standards and procedures that prevent undue delay. Although PRD regulations represent an opportunity for departure from the terms of the zoning ordinance, they must be based on and interpreted in relation to the statement of community development objectives of that ordinance and must contain certain provisions.

When considering PRD applications, a municipality is required to meet procedural requirements distinct from those imposed upon typical zoning applications. A governing body or planning agency reviewing a planned residential development application must hold a public hearing, and thereafter grant outright or conditional “tentative approval,” or deny the same. The tentative approval of a PRD overrides the zoning ordinance requirements as to that location, and effectively amends the zoning map, pending final approval.

When a PRD has been tentatively approved, the municipality must communicate the decision in writing to the applicant within 60 days following the conclusion of the hearing or 180 days after the date of filing of the application, whichever occurs first. Pursuant to Section 709 of the MPC, 53 P.S. Section 10709, a written decision on a PRD application must include not only conclusions, but also findings of fact and reasons supporting the tentative approval or denial of the application. The MPC expressly requires the decision set forth with particularity in what respect the plan would or would not be in the public interest, including, but not limited to: the extent to which the plan departs from zoning and subdivision regulations otherwise applicable to the property; the purpose, location and amount of common open space proposed; and the manner in which the design of the plan does or does not provide adequate control over vehicular traffic. As outlined in Gouwens II, a municipality’s tentative approval of a PRD may be fatally flawed if it fails to clearly articulate how the plan meets the specific criteria as well as the purpose described in the zoning ordinance.

In Gouwens I, the previous decision of the Commonwealth Court prior to remand, a developer filed an application in Indiana Township, Allegheny County (township), for a PRD consisting of 91 townhouses (plan). In January 2018, the Township Board of Supervisors (board) tentatively approved the plan, despite the fact certain items did not strictly conform to the PRD provisions in the township zoning ordinance (ordinance). In particular, certain details related to the variety of housing, the percentage of the project dedicated to common open space, and the length of a cul-de-sac did not adhere to ordinance requirements. Following the township’s determination, objectors appealed to the trial court, alleging in part that the plan did not meet ordinance requirements and the board’s decision was inadequate under the MPC.

On appeal, the trial court affirmed the tentative approval without taking on additional evidence. objectors again appealed to the Commonwealth Court, which agreed that the Board did not comply with the requirement in Section 709(b) of the MPC that its determination explain how the plan responds, or fails to respond, to specific enumerated ordinance criteria. Consequently, the matter was remanded to the board with directions to issue a new decision with appropriately rendered findings of fact and reasons for the grant of the tentative approval. On remand the board issued a revised decision in support of its grant of tentative approval of the plan. Objectors again appealed to the trial court which again affirmed, and objectors appealed to the Commonwealth Court once more.

On appeal in Gouwens II, the objectors argued that the board’s revised decision still failed to adequately support its determination. The first issue involved whether the plan’s proposal to include three townhouse designs but no other types of housing met the ordinance requirement that a PRD may be approved “if and only if they accomplish” certain purposes, including providing a “variety in the type, design and arrangement of housing units.” The board alleged that the purpose of this requirement was to promote a variety of housing within the township, rather than within the PRD itself, which the court rejected as not reasonable or consistent with the plain language of the ordinance.

The court then turned to whether the Board failed to adequately support its conclusions that the plan met two of the public interest criteria regarding common open space and internal traffic design. As noted above, these criteria are mandated by the MPC and must be adopted in some form within a zoning ordinance’s PRD provisions. Addressing the open space issue first,  the court determined that while 60% of the property was proposed to be “open space,” much of it was either to be used for stormwater management, or was located on steep slopes which the developer described as “passive open space,” to be viewed but not used recreationally. The court noted the term “common open space,” as defined in the MPC and ordinance, has been interpreted as a means to ensure the PRD contains mechanisms to provide greater opportunity for recreation and to provide for the conservation and more efficient use of open space ancillary to dwellings. The court rejected the assertions of the developer, adopted by the board, that “passive open space” or portions used for stormwater management constituted “common open space” as defined by the ordinance. It therefore determined the board’s conclusion that the plan met this requirement constituted legal error and an abuse of discretion.

The third issue involved the length of a cul-de-sac proposed to be located within the plan. The ordinance’s PRD requirements stated a PRD proposal must ensure the “physical design of the [PRD] adequately provides for internal traffic circulation and parking …” and requires the “dimensions and construction of … streets … within the PRD will comply with the standards of the township at the time the application is approved.” The township had enacted a “Cul-de-Sac Ordinance” that required cul-de-sacs be no longer than 800 feet including turn-around. In reviewing the plan, the board granted modification of the Cul-de-Sac Ordinance in order to permit a cul-de-sac which exceeded 800 feet. The court found the board had erred by willfully and capriciously disregarding competent and relevant testimony related to the safety issues posed by the length of the cul-de-sac. It further found the board’s decision to grant the modification of the 800-foot limit, and the determination the plan met the adequate traffic circulation requirement, to be legally insufficient and an abuse of discretion.

Because the plan was found to not comply with the requirements of the zoning ordinance, the board’s grant of tentative approval was found to be in error and the trial court’s affirmance of the same was reversed. The Gouwens I and II decisions underscore that while in concept PRDs are intended to encourage flexibility in use and design, that flexibility is constrained by the express requirements of the MPC and underlying zoning ordinance.

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Reprinted with permission from the October 21, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.