In Re Appeal of J. Kevan Busic et. al. From the Action of the Solebury Township Board of Supervisors, Solebury Township, Appellants, 759 a 2D. 417, Pa. Cmwlth., 2000.

Applicants right to challenge conditions imposed on preliminary plans.
Case Details:

Cross Reference: MPC Sections 107(b) and 1002-A.

The central issue in this case was whether the acceptance of a condition on a Preliminary Plan, without appeal of the condition, constitutes a waiver of the applicant’s right to appeal the same condition on Final Plan approval.

Applicants had obtained Preliminary Plan approval, which contained ten conditions. The applicant agreed to the conditions at the time the conditional approval was made by the Board. The Township later approved the Final Plan with the same conditions. The applicant appealed, claiming a “deemed approval” under MPC 508(2), noting the failure of the Township to specify any defects in the application. The applicant also argued that a Preliminary Plan is not a “final appealable decision”.

The Commonwealth Court reversed the trial court, which had granted applicants a “deemed approval”. The lower court had found that Preliminary Plan approval does not constitute a “final appealable” decision under MPC 1002-A. It interpreted Section 107 of the MPC, defining “Decision” as being applicable only to Final Plans.

In reversing the lower court, the Commonwealth Court interpreted MPC 107(b) to include within the definition of “Decision,” actions on Preliminary as well as Final Plans, which are therefor both final and appealable under MPC 1002-A. The Court recognized an affirmative duty for the applicant to reject and appeal preliminary conditions with which it does not agree. In the absence thereof, the court held that an applicant cannot wait until Final Plan approval before contesting the conditions.

The Court also found that “impossibility of performance” (here to a condition that the applicants reach agreement with a neighbor regarding the use of a road that crossed their properties) gave the applicant no right to have the condition voided. The Court again cited the fact that the applicant had “accepted” the condition and therefore had assumed the risk that he could not reach agreement with the neighbor.

In its decision, the Commonwealth Court made repeated references to the fact that the applicants had “agreed” to the conditions and also had not appealed the Preliminary Plan approval with these conditions. The Court apparently left open the issue of how a similar case would be decided if the applicant had objected to the conditions but had not appealed the Preliminary Plan approval. In a concurring opinion, Judge Friedman dealt with the impact of MPC 503(9) which permits municipalities to adopt a two stage plan approval process, Preliminary and Final, and to provide for procedures for acceptance or rejection by an applicant of conditions placed on the approval by the municipality. While Judge Friedman found this issue to be moot because the applicants had, in fact, “accepted” the conditions at the Preliminary Plan stage, the question remains: If a municipality enacts a procedure for acceptance or rejection of conditions and provides for a recission of any approval where the applicant rejects imposed conditions, could the recission/rejection be considered a “deemed approval” if it did not cite the specific plan deficiencies as required by MPC 508(2).

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