Pennypacker v. Ferguson Twp., 167 A.3d 209 (Pa. Commw. Ct. 2017)

The Pennsylvania Municipalities Planning Code (MPC) permits planned residential developments (PRD) as a means of “approving large developments which override[ ] traditional zoning controls and permit[ ] the introduction of flexibility into the design of larger developments." Appeals from final plan approval of a PRD where an appeal from tentative plan approval was not taken are generally prohibited. When appealing, appellant must state the grounds for appeal in the notice of appeal and unstated claims are waived.
Case Details:

Developer submitted a tentative plan to the Township for a PRD. The tentative plan was approved with conditions that Developer accepted. One condition was that the PRD comply with the Township’s Zoning Ordinance (Ordinance). Developer later submitted a final plan which was approved with conditions accepted by Developer. Developer also filed a lot consolidation plan which would adjoin a smaller tract of land in a different zone. The smaller tract’s zoning district did not permit PRDs, but the lot was to be used solely for stormwater management. Objectors appealed the final plan approval on a number of grounds. Developer filed a motion to quash arguing Objectors’ waived their appeal rights when they failed to assert in their notice of appeal that the final plan for the PRD deviated from the tentative plan and because Objectors did not appeal the tentative plan approval. Objectors countered in their response to Developer’s motion that, because the tentative plan included the condition that the PRD must comply with the Ordinance, failure of the final plan to comply with the Ordinance constituted a deviation from the tentative plan, so their appeal was timely. The trial court issued an opinion and order denying Developer’s motion to quash. The trial court concluded the appeal was timely because the final plan did not comply with the tentative plan’s conditions in that it did not comply with the Ordinance. Developer appealed to the Commonwealth Court.

The Pennsylvania Municipalities Planning Code (MPC) permits a municipality to establish conditions and standards for the development of PRDs. Per the MPC, a PRD is “a larger, integrated planned residential development which does not meet standards of the usual zoning districts.” The MPC continues that the purpose of a PRD ordinance is to “create a method of approving large developments which overrides traditional zoning controls and permits the introduction of flexibility into the design of larger developments.” The MPC specifically prohibits appeals from final approval of a PRD plan where an appeal from tentative plan approval was not taken, except where the final plan deviates from the tentative plan. Additionally, Section 1003-A of the MPC provides that land use appeals are initiated by the “filing of a land use appeal notice which concisely sets forth the grounds on which the appellant relies” and Pennsylvania courts  “have repeatedly held that the language in Section 1003-A is mandatory and that an appellant’s failure to state the grounds for appeal in the notice of appeal results in waiver.” Accordingly, the Commonwealth Court reversed the trial court’s decision and vacated its order.

Date of Decision: 5/17/17

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