Citation:

Middle Smithfield Twp. v. Kessler,
882 A.2d 17 (Pa. Cmwlth. 2005), app. denied, 903 A.2d 539 (Pa. 2006).

Summary:
A municipality may insist on the completion of roadway improvements before issuing final occupancy certificates, even when PennDOT would otherwise allow access to the property before final completion of the road improvements.
Case Details:

Township supervisors preliminarily approved a landowner’s land development plan that proposed to add a convenience store to an existing gas-station; however, as a condition to the issuance of final approvals and occupancy certificates, the supervisors required the owner to acquire “an approved and completed highway occupancy permit” from PennDOT.  The owners obtained the necessary PennDOT permit (allowing them to add a center turn lane in the vicinity of their property) and began construction.  After completing construction of the convenience store, but before the road improvements were completed, owners obtained an extension on its PennDOT permit and permission from PennDOT to allow patrons to use the property’s existing roadway access.  PennDOT did not object; however, the township declined to issue final occupancy certificates for the store because the owners had not completed their roadway improvements.  Despite the township’s objections, the owners opened their store for business.  The township then sought an injunction from the court of common pleas.

Concluding that the township could not prohibit the landowner from opening its business prior to completion of the roadway improvements, the court of common pleas denied the injunction.

On appeal, the Commonwealth Court reversed and concluded that a municipality can insist that a developer obtain all necessary PennDOT permits as a condition to final approval of a land development plan.  Moreover, a municipality can insist that the work associated with the PennDOT permit be completed before issuing its final occupancy certificates, regardless of whether PennDOT would otherwise allow use of the premises before the completion of the road improvements.

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