Dowds v. Zoning Bd. of Adjustment, 165 A.3d 75 (Pa. Commw. Ct. 2017)
The pending ordinance doctrine is inapplicable to land use applications submitted before the proposed ordinance becomes a “pending ordinance.” Although subsequent changes to an application might make the doctrine applicable, changes that are insubstantial or for clarification purposes, especially when the changes were made at the request of the municipality, will not subject an application for the pending ordinance doctrine.
Applicant filed a zoning application with the City’s Department of Licenses and Inspections (Department) on May 23, 2014. The application sought approval to demolish an existing structure on the Applicant’s property (Property) and to build a six-story structure with an internal parking garage for residential and office uses. The Department determined the proposed uses were permitted in the Property’s zoning district but that the parking garage, itself, required a special exception. In addition, the Department required other, insubstantial changes to the plan submitted with the application. On June 3, 2014, a zoning ordinance that would reduce the permitted building area for the Property was reported favorably by the City Council’s Committee on Rules. At the hearing on the application, Applicant submitted a revised plan that incorporated the Department’s required changes. Over Appellant’s objections, the Zoning Board of Adjustment (ZBA) approved the application.
Appellant appealed, arguing that the City’s pending ordinance doctrine applied, such that the building proposed for the Property was now too large. The trial Court remanded the matter for the ZBA to take evidence on the chronology of the application and the new zoning ordinance with respect to the pending ordinance doctrine. Following the hearing on remand, the ZBA affirmed its prior decision and Appellant appealed again to the trial court and then the Commonwealth Court.
The Commonwealth Court ruled in Applicant’s favor and determined the pending ordinance doctrine did not apply in this case and that the ZBA properly approved the special exception. Per the Commonwealth Court, “under the ‘pending ordinance doctrine’, a proposed zoning ordinance that has sufficiently advanced in the legislative process to be a ‘pending ordinance’ applies to building permit applications filed before the ordinance was fully enacted.” The City’s Zoning Code defines a “pending ordinance” as “any bill not yet enacted into law that would amend [the City’s Zoning Code or Map], if a Committee of City Council has voted to report the bill and the bill remains under active consideration.” The Court held that Applicant’s zoning application was complete, despite the revisions submitted after June 3, 2014, because the revisions were insubstantial or for clarification purposes. In addition, they were made at the request of the Department. The revisions included the addition of bike racks and a parking space, adjusting the height of mechanicals and the penthouse, and decreasing the width of the driveway.
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