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A land development application shall be reviewed under the terms of the zoning ordinance in effect on the date the application is duly filed and shall not be afforded the benefit of any favorable zoning amendments enacted after the date of filing.
Telvil Construction Corp. v. East Pikeland Zoning Hearing Board,
896 A.2d 651 (Pa. Cmwlth. 2006), reargument denied (Pa. Cmwlth. May 15, 2006).
Pursuant to a township’s Subdivision and Land Development Ordinance, a developer submitted a “sketch plan” for a proposed residential development on a 22.7-acre parcel. Under the township’s Zoning Ordinance in effect on the date of the submission, the property underlying the proposed development was zoned “R-2,” which had a minimum lot size of 2.3 acres for lots requiring elevated sand mounds, a condition applicable to the developer’s property. Consequently, only nine lots could be developed.
Three months after the developer submitted the sketch plan, the township rezoned the underlying property “Agricultural Preservation,” which had no minimum lot size for properties requiring elevated sand mounds, but did limit the number of lots that could be developed on the property to six.
Before the township’s zoning hearing board (ZHB), the developer challenged the constitutionality of the original Zoning Ordinance’s lot size requirement for properties requiring elevated sand mounds. Simultaneously, the developer requested a variance. The ZHB affirmed the constitutionality of the original Zoning Ordinance and denied the variance. Developer appealed.
Common pleas affirmed the ZHB with respect to the constitutionality of the original Zoning Ordinance as well as its denial of a variance. The trial court, however, reversed the ZHB on different grounds. Citing MPC Section 508(4)(i) which states, in part, “no change or amendment of the zoning . . . ordinance . . . shall affect the decision on such application adversely to the applicant,” the court concluded that the developer was entitled to benefit from favorable changes enacted after it had submitted its application. The favorable zoning change in this case was the removal of a minimum lot size for properties requiring elevated sand mounds.
Rather than appealing whether the lower court properly considered Section 508(4)(i), the township simply appealed the lower court’s interpretation and application of Section 508(4)(i).
The Commonwealth Court disagreed with the lower court’s interpretation and reversed. Although the Court acknowledged dicta in its 1999 Valenti decision suggesting that development applications are entitled to the benefits of subsequently enacted ordinance amendments, the Court rejected the notion that a developer may “pick and choose” the most favorable provisions of old and new ordinances. Rather, the Court held, Section 508(4)(i) requires that a municipality review a land development application under the terms of the ordinances in effect at the time an application is submitted. If a developer wishes to benefit from subsequently enacted amendments, the developer must resubmit the application.
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