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Where a property owner receives subdivision and land development approval for subdivision into one-acre lots, but fails to complete the required improvements within 3 years, the property is subject to the provisions of the new ordinance restricting development to two-acre lots, whether or not the landowner paid taxes assessed on the one-acre lots prior to the zoning change.
Gallagher v. Chestnuthill Township, 968 A.2d 253 (Pa. Commw. 2009).
In 1977, Appellant Gallagher obtained subdivision and land development approval to subdivide his property into 21, one-acre lots. At the time the plan was recorded, it required road and other improvements. While some work was done, the required improvements were never completed. In 1990, however, the individual lots were assessed by the municipality and Gallagher paid the taxes due on each of the lots. In 2000, the Township amended its zoning ordinance to require a two-acre lot minimum in the R-1 district in which the property was located. The property owner filed an action seeking an order that he was not required to comply with the two-acre minimum set forth in the new ordinance. The Trial Court determined that, because Gallagher had paid taxes on the individual lots since 1990, the one-acre lots were valid, non-conforming uses under the new ordinance. The Township filed a post-trial motion seeking to reverse the decision and, when the Trial Court refused, the Township filed an appeal with the Commonwealth Court.
The Commonwealth Court first noted that, under Section 508(4) of the Municipalities Planning Code, a landowner has five years (although at the time of the events in this matter, the time period was three years) to develop the property according to an approved land development plan, irrespective of any intervening changes in zoning. The Trial Court found that, under this provision, the landowner was not entitled to protection for the road improvements because they were not completed within the statutory time period, but because the lots had been assessed before the zoning change, the landowner was not subject to the new two-acre minimum requirement. The Commonwealth Court rejected this holding. One of the conditions attached to the original approval required the landowner to make all road and other improvements and obtain a certificate of approval from the Township before selling any lots. Because this was not done, the landowner is now subject to the current ordinance requirements.
The fact that the landowner paid taxes on the one-acre lots does not change the result, as the tax bills were sent by the Board of Assessments, not the Township, and the Township received only approximately $2,000 in tax revenue. Receiving this tax revenue does not constitute active acquiescence in non-conforming lots for purposes of Pennsylvania law. Instead, the landowner is bound by the provisions of the new ordinance.
Opinion Date: March 25, 2009
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