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MPC Protection Against Adverse Ordinance Changes Not Applicable to Sewage Facilities Plans. Pequea Township v. Herr et. al., 716 A 2d 678 (1998) Cross Reference: MPC Section 508(4)(I) The Commonwealth Court, in reviewing an order of the Environmental Hearing Board, held that the protections afforded a developer against changes to zoning and subdivision/land development ordinances during the five (5) years following preliminary plan approval do not protect against adverse changes to a municipalities sewage facilities plan. In this case a developer had obtained preliminary approval for an industrial development, to be served by public sewer. Some twenty (20) months later, the township adopted a revised sewage facilities plan which changed the proposed method for treating sewage for the parcel (as part of a larger treatment area) from public to on-lot disposal systems. The new plan was filed with DEP for review and approval under Act 537. Shortly thereafter, and before approval of the new sewage facilities plan by DEP, the township refused to adopt the sewage facilities planning module submitted by the developer on the grounds that it was inconsistent with their new sewage facilities plan. Fourteen months later (still within the five (5) year protection period under MPC 508(4)(I) the developer obtained final approval from the county planning commission for his project, conditioned upon approval of his sewage facilities planning module. The township did not appeal the conditional approval. Two (2) months after obtaining the county planning commission's approval of the subdivision plan, the developer submitted a "private request" to DEP to adopt the planning module as a revision to the existing community sewage facilities plan. The Department found that since the new sewage facilities plan submitted by the township had not yet been approved, the developer was entitled to approval of his sewage facilities planning module. DEP ordered the township to adopt the module. The township then appealed to the Environmental Hearing Board (EHB). The EHB reversed DEP, concluding the the new sewage facilities plan had been "deemed approved" when DEP failed to act on the submission within 120 days of the submittal as required under Pa.Code Section 71.32. The court upheld the decision of the Environmental Hearing Board. The final decision included a number of complex procedural issues. Most important to this summary the findings include a determination that, as a matter of law, MPC 508(4)(i) does not afford a developer protection against sewage facilities plan amendments. However, the court also found that the 1992 sewage facilities plan adopted by the township was " inadequate to meet the applicants sewage disposal needs" and upheld the EHB's order that DEP grant the developers private request. The court discussed in detail the provisions of Act 537, Section 5(b) which permit a "private request" when a property owner believes that a municipality's sewage facilities plan is either not being implemented or is inadequate to serve the landowner's sewage needs. (It is interesting to note that the final decision came five (5) years after the final approval of the developer's subdivision plan.
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