Citation:

Rickert v. Latimore Twp. Board of Supervisors, 869 A.2d 1086 (Pa. Cmwlth. 2005)

Rickert v. Latimore Township, 960 A.2d 912 (Pa. Cmwlth. 2008).

Summary:
An applicant is entitled to approval of their final subdivision plan if their preliminary plan was approved as long as the final plan is substantially the same as the preliminary plan.
Case Details:

In 2005 following a township’s rezoning of certain property, owners of the affected property challenged the validity of the zoning changes on procedural grounds. The zoning hearing board affirmed the validity of the zoning changes. The court of common pleas reversed. The township’s board of supervisors appealed to the Commonwealth Court, arguing that the board had complied with Sections 607 and 608 of the Municipalities Planning Code when it enacted the changes.

The Commonwealth Court affirmed the decision of the court of common pleas that the ordinance was “fatally flawed” because the township had failed to post notices along certain areas that were to be changed by the rezoning as required by the MPC.

The Commonwealth Court also opined that:

1) the drafting collaboration between the Supervisors and the Planning Commission did not violate the MPC;

2) the published notice did not mislead the public by characterizing the change as an amendment rather than a new ordinance;

3) it disagreed with the lower court’s finding that the change amounted to a new ordinance rather than an amendment and, importantly, rejected the factors used below to make such a determination including the “quantum of changes,” the presence or absence of “strike/add” notations, or express language indicating repeal of a prior ordinance and;

4) it is not error for a municipality to characterize a change as an amendment, rather than a new ordinance, regardless of the scope of the change, when the municipality has a prior zoning ordinance already in effect, so long as the municipality uses labels in its notices that are consistent with those used in the proposed ordinance itself and consistently follows the procedure for an amendment set forth in the MPC.

 

In 2008 Rickert and Junkins (“Property Owners”) own property which is split zoned between a Commercial Industrial District and Agricultural Conservation District.  The Property Owners submitted a preliminary land development plan proposing to build a storage facility for construction equipment and material storage on the portion of the property that is zoned Commercial Industrial. They proposed to build an office building in the portion that was partially Commercial Industrial District and partially Agricultural Conservation District. The Supervisors denied the plans, but never issued a written decision.  Therefore, Property Owners were entitled to a deemed approval of the preliminary subdivision plan because under the MPC, the governing body must render a written decision within the prescribed time period set forth in the MPC.

Subsequently, Property Owners submitted a final subdivision plan which was basically identical to the preliminary plan.  The County Office of Planning and Development placed comments on the plan providing that the proposed uses were not permitted uses within the Commercial Industrial District. The Supervisors approved the final plan with the conditions that the Property Owners obtain all zoning approvals or variances prior to development and that Property Owners remove all commercial development from the Agricultural Conservation District.  The Property Owners did not accept the conditions and the Supervisors denied the final land development plan.  The Supervisors found that all zoning requirements must be satisfied before a final plan can be approved.

The Property Owners appealed to the trial court which held that the Supervisors were required to accept the final plan because they were substantially the same as the previously deemed approved preliminary plan.  Further, the trial court found that the zoning issues raised by the Supervisors were not supported by the evidence.  The Township appealed arguing that the zoning issues were a proper basis for denial, that the zoning issues were supported by evidence because Property Owners were informed that the proposed use was not permitted, and Township argued that the trial court erred when it required the Township to post a bond with its appeal to the Commonwealth Court because the trial court found the appeal to be frivolous.
The Commonwealth Court found that if an applicant’s preliminary plan is approved, then they are entitled to final approval if the final plan is substantially the same as the preliminary plan.   The Commonwealth Court also held that whether or not zoning approvals must be obtained with a land development application is governed by the relevant Subdivision and Land Development Ordinance (the “SALDO”).  Here, the SALDO did not require that an applicant receive zoning approval prior to a final plan approval.  Therefore, the Commonwealth Court held that because the preliminary plans were approved, the final plans must also be approved regardless of any zoning issues.

Also, the Township appealed the trial court’s condition that in order to appeal to the Commonwealth Court, the Township was required to post a $100,000 bond because the trial court found that the appeal was frivolous.  Property owners requested the appeal bond pursuant to Section 1003-A of the MPC, which authorizes the order of posting of a bond as a condition of a land use appeal.  The Commonwealth Court found that Section 1003-A did not grant the trial court the authority to require the bond because it only provides protection to landowners whose land use approvals are challenged. Here, the Property Owners were not seeking to prevent development; they wanted to pursue development of their own land. Further, Section 1003-A applied only to trial court proceedings; it does not apply to appeals to the Commonwealth Court.

Date of Decision: 11/21/08

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