Alta Vita Condominium Association v. Zoning Hearing Board of the Township of Hempfield, 736 A.2d 724, Pa. Comwlth. (1999).
When a PRD Plan or a revision to the Plan is approved and recorded, the zoning and subdivision regulations otherwise applicable no longer apply.
Cross Reference: MPC Section 706(2), 711(d) and 712.2.
The Objectors, members of the Condominium Association created for the subject residential development, protested the issuance of a building permit for the successor developer to construct six , six-unit multi-family structure. The Zoning Hearing Board and the trial court both agreed that the permits were properly issued under the approved PRD.
The Commonwealth Court decision provides a good overview of the protections afforded by the approval and recording of a Planned Residential Development Plan.
More than 20 years after initial approval of the PRD Plan for Lago De Vita the successor developer applied for and was issued six permits for six, six-unit multi-family buildings on an undeveloped portion of the PRD tract. The objectors raised a number of issues, all of which were subsequently rejected by the court.
The primary issue was the right of a successor developer to build additional units 20 years after initial approval of the PRD and the impact of a “subdivision” of a portion of the PRD tract (where the PRD restrictions were still to apply to the subdivided tract).
The Court reiterated the general principal that once a tract is made subject to an approved and recorded PRD Plan, zoning and subdivision regulations otherwise applicable do not control the continued development of the project. Only by abandoning a PRD by filing written notice of its intention does a developer make the project re-subject to zoning and subdivision regulations. Here there was no evidence of such an abandonment. The mere formality of “subdividing one lot from the PRD tract, with the new lot still being subject to the PRD conditions, was not evidence of abandonment. Neither was the passage of time (20 years) in light of the fact that the PRD as approved had no time limitations for development of the residential units.
In this PRD the original developer had indicated that the location for the various planned structures was “approximate”. The court therefore concluded that the municipality had no right to require any certain placement of units so long as the development was consistent with the plan as to height, bulk or location. The court, citing a previous decision, found that “there is nothing in Section 711 of the MPC or elsewhere which empowers a municipality, without the agreement of the developer, to impose conditions to final approval additional to, different from or amendatory of conditions imposed upon tentative approval”. Hakim v. Board of Commissioners of Township of O’Hara, 27 Pa. Cmwlth. 405, 366 A. 2d 1306 (1976).
The court also held that the Zoning Hearing Board has no enforcement powers related to non-compliance by a developer with the approved and recorded PRD Plan. The court found that there were two provisions in the MPC which provide for enforcement of PRD’s. Section 712.2 of the MPC grants a municipality the right to bring a civil enforcement action before a District Justice. In addition, MPC Section 706(2) gives residents of a PRD the right to enforce provisions of the PRD Plan “at law or in equity”. Here, even though the Zoning Ordinance gives the zoning officer certain administrative powers to monitor the progress of a PRD, such provision does not give the Zoning Hearing Board any power of enforcement relative to the Zoning Officer’s actions or lack of action.
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