1050 Ashbourne Assocs., LLC v. Cheltenham Twp. Bd. of Comm’rs, 167 A.3d 828 (Pa. Commw. Ct. 2017)

Section 917 of the Pennsylvania Municipalities Planning Code (MPC) is not a statute of limitations, but an entitlement to file a land development plan within six months or longer of the granting of a special exception, as may be provided in the governing ordinances.
Case Details:

Developer sought to build an age-restricted housing development. The Township’s Zoning Code (Code) created an Age-Restricted Overlay District (A-R Overlay) that allowed for the development of age-restricted housing developments by special exception. The A-R Overlay did not impose a limit on the number of dwelling units per building, but was amended in 2012 to impose a maximum height requirement for buildings. The Code also created a Preservation Overlay District (Preservation Overlay) which limited the number of dwelling units per building to eight. However, in the event of a conflict, the Code stated the requirements of the A-R Overlay were paramount to all other provisions of the Code.

In 2013, Developer applied for and was granted a special exception to build the desired development. Developer was later notified the project had to comply with the requirements of the Preservation Overlay. In response, Developer argued the requirements of the A-R Overlay took precedence. Developer then submitted a sketch plan that conformed with the latter’s requirements. The Board of Commissioners (BOC) refused to approve the sketch plan because (1) the proposed building would have more than eight units, in violation of the Preservation Overlay; and (2) the height of the proposed buildings exceeded the maximum height imposed by the 2012 amendment (2012 Amendment) to the A-R Overlay. Developer appealed to the trial court who rejected the BOC’s assertion that the sketch had to abide by the requirements of the Preservation Overlay, but affirmed the denial of the sketch plan for non-compliance with the 2012 amendment. Developer appealed to the Commonwealth Court.

With respect to the conflict between the number of units required under the Preservation Overlay and A-R Overlay, the Court affirmed the trial court’s holding. The Code clearly made the A-R Overlay’s provisions paramount to any other in the Code; therefore, the absence of a maximum number of units requirement meant Developer was free to propose any feasible number of units for each building.

The Court reversed the trial court’s decision with respect to the 2012 Amendment to the A-R Overlay’s building height requirement.  The Court held Section 917 of the MPC is not a statute of limitation, but an entitlement. Under Section 917 of the MPC, a landowner need not comply with zoning ordinance amendments adopted after the submission of a special exception application if it utilizes its special exception within the timeframes permitted by the MPC and the relevant zoning ordinance. Per Section 917 of the MPC, the applicant is entitled to proceed with planning requirements “within six months or longer    . . . in accordance with the provisions of the governing ordinances.” In its Code, the Township established a period longer than six months, giving applicants two years after the granting of a special exception to “implement its special exception, including the completion of the planning requirements.” During that two-year period, amendments to the Code are not applicable to the relevant application.

Developer applied for a special exception on May 30, 2012 and it was granted on January 14, 2013. The trial court affirmed the decision to grant the special exception on September 15, 2015 and Developer filed is sketch plan on June 16, 2015. The 2012 Amendment was adopted after the special exception application was submitted, and Developer’s sketch plan was submitted before the expiration of two-year period beginning upon the approval of the special exception.  Therefore, the 2012 Amendment was not applicable to Developer’s sketch plan since it was adopted after the special exception was submitted. Moreover, Developer properly filed the sketch plan within two years of the granting of the special exception.

Developer also asserted a claim of bad faith against the BOC for not raising the issues with the Preservation Overlay requirements and the 2012 Amendment in the hearing for the special exception. The Court affirmed the trial court’s finding of no bad faith on the grounds the Developer’s refusal to allow an extension of time for the BOC meant that the BOC had to act to avoid a deemed approval of the sketch plan.

Date of Decision: 8/1/17

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