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Immunity from changes in zoning and planning laws after preliminary plan approval. Unacceptable schedule for phased development not grounds for denial of preliminary plan. Cross Reference MPC Section 508(4). Section 508(4) of the MPC is a comprehensive statement of the affect of changes in zoning and subdivision/land development ordinances on plats which have received preliminary approval. In general these protections are as follows: 508(4)(i): While a plan is being processed by the municipality it may not be adversely affected by changes to zoning and other planning ordinances. This protection begins with the filing of a plan (which must be a "complete" plan as required by the subject ordinance) and applies during the duration of the approval process. Further, after approval of a preliminary plan, the plan is entitled to final approval in accordance with the terms of the preliminary plan approval, including conditions imposed on the preliminary approval and technical requirements of the ordinance applicable to final plans. 508(4)(ii): An approved plan, whether preliminary or final, is protected against adverse ordinance changes for a period of five (5) years. The developer has the right to complete any or all of the project within that five (5) year period without fear that an ordinance change could adversely affect his project. The developer must, however, comply with any conditions placed on the approval by the municipality (unless the developer has been successful in appealing such conditions). 508(4)(iii): If the final plan has been preceded by a preliminary plan, the five (5) year period runs from the date of the preliminary approval. If not, the protection period runs from the date of final approval. 508(4)(iv): Where the landowner has "substantially completed" the required improvements within the five (5) year protection period no changes in the municipality's ordinances enacted after the filing of the preliminary plan can adversely affect an approved plan as to zoning classification or density, lot, building, street or utility location. 508(4)(v): Preliminary plans may provide for installation of improvements beyond the five (5) year period . The developer must provide a schedule for such a phased development, to be updated annually. The schedule must include the installation of the improvements as well as the schedule for final plan application for subsequent phases. Once such schedule is approved by the municipality as part of the preliminary plan, the developer is entitled to final plan approval for all phases. The approved schedule may be modified only with municipal approval. Such approval by the municipality is purely discretionary. 508(4)vi: Each section of a phased residential development must contain at least twenty-five (25%) of the total number of proposed dwelling units, unless the municipality, in its sole discretion, permits a smaller percentage. So long as a phased residential development is meeting the approved schedule for completing mandated improvements and gaining final approval of subsequent phases, the five (5) year protection period is extended for an additional three (3) years from the date of final plan approval for each such phase. 508(4)vii: The failure to adhere to the schedule for final plan approvals exposes all further development of the project to any changes in zoning, subdivision or other governing ordinances adopted by the municipality subsequent to the initial preliminary plan submission date. In this case the Commonwealth Court upheld the denial of a preliminary plan which provided for 15 phases to be developed over a 13 year period. The municipality did not accept the development schedule which was clearly outside of the automatic provisions of MPC 508(4). The Commonwealth Court rejected numerous reasons cited by the municipality in support of its rejection of the preliminary plan, but found that the proposed phasing, being unacceptable to the municipality was grounds for denial of the plan. The Supreme Court rejected the arguments advanced in the prior Commonwealth Court decision and determined that an applicant for a preliminary plan calling for a phased development exceeding the limitations of MPC 508(4) is still entitled to preliminary plan approval. The excessive time frame requested by the developer may be rejected by the municipality. The protection against new legislation is limited to the automatic five (5) years from the date of preliminary plan approval but the plan itself must be approved.
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