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Filing a conditional use application filed after a subdivision application can constitute abandonment of the subdivision application.
Philomeno & Salamone v. Upper Merion Twp. Board of Supervisors,
882 A.2d 1044 (Pa. Cmwlth. 2005), app. granted.
Landowners submitted a subdivision application to the township board of supervisors, seeking to subdivide their property into seventeen lots to be used for single-family homes. Landowners granted a one hundred fifty day extension to the supervisors to render a decision on the subdivision plan. During the extension period, but before the supervisors had ruled on the subdivision plan, Landowners submitted a conditional use application, seeking the right to develop their property as a “clustered development zone” (in this case, the proposed cluster consisted of twenty-eight townhouses and a recreation area with the remainder reserved as open space).
The supervisors failed to render a decision on the original subdivision application by the extension date. Landowners filed a mandamus and peremptory judgment action with the court of common pleas, seeking a deemed approval of their subdivision plan because the supervisors had failed to render a timely decision on their subdivision application pursuant to Section 508(3) of the MPC. Common pleas granted landowners’ motion for peremptory judgment (i.e. deemed approval of their subdivision plan). The Township appealed.
On appeal, the Commonwealth Court agreed with the Township’s argument that a landowner who seeks subdivision approval for one purpose (to develop individual lots) abandons such a plan by subsequently applying for a zoning use change for the same tract of property--in this case an application for a conditional use permit. The court reasoned that because “Landowner filed two separate applications with respect to the same tract of land, which were clearly inconsistent, and pursuant to two separate sets of ordinances,” Landowner had abandoned his subdivision application. The Commonwealth Court also noted that although the purpose of Section 508(3) “is to protect an applicant from dilatory conduct by the municipality,” there was no such dilatory conduct in this case, only “confusion and protracted proceedings” caused by the Landowner.
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