The opinion of the court was delivered by: Doris A. Smith-ribner, Judge
AND NOW, this 15th day of January, 2009, upon consideration of the Motion to Publish Unreported Memorandum Opinion filed by the Zoning Hearing Board of Chanceford Township and Chanceford Township, said Motion is granted. It is hereby ordered that the attached opinion filed October 23, 2008 shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.
Frank N. Shaffer Family Limited Partnership (Partnership) and Kevin and Kendra Shaffer (Shaffers) (together "Appellants") appeal from an order of the Court of Common Pleas of York County affirming a decision by the Chanceford Township Zoning Hearing Board (Board) to uphold the enforcement notice issued by the Township to Appellants based upon their violation of Sections 201 and 203 of the Township Subdivision and Land Development Ordinance (SALDO).*fn1 The case arises out of the creation and development of a planned community.
The Partnership owned twenty-five acres of vacant land (Property). In June 2005 the Shaffers applied for a building permit for a single family dwelling (Shaffer house) on the northwest corner of the Property; zoning and construction permits and later a certificate of occupancy were issued to "Frank Shaffer" as the record owner. In October 2006 it created the "Shaffer Planned Community" out of the Property under the Uniform Planned Community Act (UPCA), as amended, 68 Pa. C.S. §§5101 - 5414, by recording a declaration and plat.
The plat shows the Property divided into three areas: "Unit 1" containing the Shaffer house on one acre; "Unit A" containing approximately twenty-two acres of vacant land; and "Common Open Space," a narrow strip of approximately two acres of vacant land, located along the southern border of the Property. See Plat, Certified Record (C.R.), Exhibit 17. The declaration defines a unit "as being a separate and distinct parcel of real property, the location and dimensions of the vertical boundaries of which (the equivalent of "lot lines") are shown on the plat and the horizontal unit boundaries of which are coextensive with the horizontal boundaries of the Subject Property[.]" Declaration, p. 6, C.R., Exhibit 17. A "unit" is defined in Section 5103 of the UPCA as "a physical portion of the planned community designated for separate ownership or occupancy...."
Immediately after recording the declaration, the Partnership conveyed by deed Unit 1 with a separate tax parcel number to the Shaffers.
Appellants question whether a planned community "unit" interest is less than the full bundle-of-rights property interest, such that creation and division of a unit interest is not subdivision or land development; whether a unit is a portion of a parcel of real property with rights of ownership or occupancy that cannot exist separately from a planned community and therefore incapable of being a divided lot; and whether creation of a planned community out of the entire parcel and later conveyance of a unit is not a subdivision or land development under Section 5106(c) of the UPCA. They also question whether Section 5106(c) is inconsistent with Section 107(a) of the Pennsylvania Municipalities Planning Code (MPC).*fn2
The Township issued its enforcement notice for Appellants' failure to submit a land development plan and for unlawful subdivision. It provided:
[T]he creation of a planned community falls within the definition of land development at section 303 of [the SALDO]. Therefore, purporting to develop your property as a planned community without first submitting a land development plan to . the Township . constitutes a violation of [the SALDO]..
Further, purporting to transfer title and ownership of a portion of the Property without review and approval of the township planning bodies constitutes an illegal subdivision of the Property . and thus is a separate violation of the Township's ordinances. . While [the UPCA] describes creation of a planned community from an entire lot or parcel as an action which in and of itself is not a subdivision, the subsequent transfer of the one-acre "unit" of ownership from [the Partnership] to [the Shaffers] does constitute a subdivision..
Enforcement Notice, C.R., Exhibit 17, Item T-6. Following a hearing, the Board affirmed the notice. Citing §16.01 of Gary Glazer's Pennsylvania Community Association Law and Practice, the Board determined that Section 5106 of the UPCA does not exempt a project from zoning, subdivision and land development law but does prohibit discrimination against a planned community association by local regulations. It also cited Chapter 11, Section 3.10 of Robert Ryan's Pennsylvania Zoning Law and Practice, which stated that "if a conversion requires the creation of new physical structures or a traditional subdivision of the tract, then the creation of condominiums should not afford the owner any favored status with respect to the local subdivision ordinance."
The Board reasoned that Section 5106 of the UPCA neither favors a planned community nor preempts the MPC or local authority to require subdivision and land development ...