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Preliminary Plan Approval, with Adverse Conditions, is a Final Appealable Decision; Failure to Appeal Waives Right to Challenge the Same Conditions Imposed on Final Plan.
In Re Appeal of Busik, 759 A.2d 417 (Commonwealth Court) August 9, 2000
Cross reference- MPC Sections 107, 1002-A
This case is cited primarily for the ruling that if a governing body imposes a condition on a subdivision application that the applicant believes is illegal or unacceptable, the applicant has a right and a duty to exercise its right to appeal within the time prescribed by the statute. If the applicant accepts preliminary plan condition, without appealing the issue, the applicant waives the right to any future challenges to that condition.
MPC Section 1002-A provides a thirty day period to appeal all land use decisions. MPC Section 1007(b) defines a "decision" as a final adjudication of any board or other body with jurisdiction under any land use ordinance or the MPC.
In this case, the landowners accepted a condition imposed by the township on the approval of their preliminary subdivision plan. The landowners were required to obtain an agreement with their adjacent landowners regarding the use of a road which traversed both owners' lands. No appeal was taken from the conditional approval. Instead, the landowners attempted to meet the condition but failed to obtain cooperation from the adjacent landowners. The applicants sought final approval of the plan absent the condition. The township approved the plan but imposed the same condition to obtain a joint use agreement.
The applicants appealed to the trial court which directed that the plan be "deemed approved" without the condition. The trial court determined that the Board's approval of a plan imposing a condition which the landowners had ultimately found unacceptable, was really a rejection of the plan. Failure to support the rejection with specific references to the plan's defects constituted an approval. The trial also found that an adverse preliminary plan approval was not an appealable decision.
On appeal, the Commonwealth Court reversed the trial court and found that preliminary plan approval with conditions may constitute a final decision which must be appealed within the time prescribed by statute. The landowner who accepts the condition imposed on the preliminary plan and does not timely appeal the decision, waives a future challenge to the condition whether or not the condition proves ultimately unacceptable.
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