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Requirement of Cash in Lieu of Required 'On Site' Improvements is Permitted Under the MPC
Soliday v. Haycock Township, 785 A.2d 139 Commonwealth Court, (October 19, 2001)
Cross Reference - MPC Sections 502-A, 503-A, 504-A, 512.1 (a) (b), 508 (4)
A township's resolution allowing landowners to make payment to highway capital improvement fund in lieu of constructing on-site frontage improvements did not violate MPC provisions requiring municipalities to enact impact fee ordinances in order to require off-site improvements.
The landowners sought judicial review of a Township Board of Supervisors' decision approving the proposed subdivision subject to the condition that the landowners make road improvements or make a capital contribution in lieu of constructing the road improvements. The municipality adopted its highway capital improvement fund resolution allowing for "in lieu" payments after the landowners filed their plan for review.
The court held that a waiver of cart way requirement was properly denied where the landowner failed to provide evidence that the requirement to widen a cartway to the Township's specifications would effect a "hardship" on the property.
The court also determined that Section 503 - A(b) is not violated by a municipal impact fee resolution which authorized the acceptance of a per-lot levy on proposed subdivision in lieu of the mandated requirement that landowners construct on-site frontage improvement. The court distinguished between the necessary formal adoption procedures for a municipal impact fee ordinance for "off-site" improvements which must be adopted pursuant to Sections 503-A (c), 504-A (b) (1) & 504 (A) (c ) (1) and a resolution which allows for in-lieu payments for on-site improvements.
The court also declined to find a violation of section 508 (4) stating that its prohibition of an ordinance's retroactive application applies only if the change adversely affects the landowner or developer. Although the resolution was adopted while the subdivision application was pending, the court held the resolution only provided an additional option to pay in lieu which was not adverse to the landowner's interests.
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