The opinion of the court was delivered by: Senior Judge Flaherty
Argued: February 23, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Chestnuthill Township (Township) appeals from an order of the Court of Common Pleas of Monroe County (trial court) which denied Township's post-trial motion to vacate the trial court's December 13, 2007 verdict, wherein the trial court concluded that William Gallagher and Christine Gallagher (Gallagher) are entitled to a variance from the minimum size lot requirement in the R-1 zoning district. We reverse.
In September of 2005, Gallagher filed a complaint seeking a judgment declaring that Township does not have the power to revoke the 1977 approved and recorded final plan for Maltese Estates and that the one acre lots depicted on the final plan can be sold and conveyed as individual lots pursuant to the plan. Township filed an answer and new matter asserting that the required road and drainage improvements were never completed, that no certificate of completion was ever issued as was required by the plan and that Township was barred from recognizing the plan because its layout and design conflict with a later enacted subdivision and land development ordinance which requires two acre lots.
The trial court conducted a hearing and made the following determinations. The land at issue, known as Maltese Estates, is owned by Gallagher. Maltese Estates consists of 21 one acre lots. Approval for Maltese Estates was given by the Board of Supervisors in 1978 and the plan was recorded. At the time the plan was approved, the Chestnut Township Subdivision and Land Development Ordinance or SALDO was in effect and such permitted one acre lots. In accordance with the plan, road and other improvements needed to be completed. The recorded plan further provided that no lots in the subdivision could be sold without first obtaining from the Board of Supervisors, a certificate of approval stating that all required improvements had been made.
An application to construct a road to provide access to the 21 lots was submitted to the Department of Transportation on April 12, 1978. Commencement of Maltese Road began and flagging of the roadway was completed on April 22, 1978. No other work was done on Maltese Road until 1980, when trees and brush were removed, swales were dug and drainage pipes were installed. Maltese Road has not been paved or completed in accordance with the ordinances that were in effect in 1978. In fact, the road base has not been maintained and is now overgrown with grass and trees.
Since 1990, the lots in Maltese Estates have been individually assessed and Gallagher has paid the tax due on the lots.
In 2000, Township's zoning ordinance was amended to require a two acre minimum in the R-1 district. Thereafter, in 2004, Gallagher contacted Township to determine whether the one acre lots in the Maltese Estates development remained valid. Township informed Gallagher that Maltese Estates is subject to the later enacted ordinances, including the two acre lot minimum. Gallagher then instituted the instant action, seeking an order from the trial court that Township does not have the power to revoke the prior approved plan for Maltese Estates, which includes the one acre sized lots.
After a hearing, the trial court determined that the lots at issue shall be designated as non-conforming lots that Gallagher is entitled to a variance from the current two acre lot size requirement and that by assessing and collecting taxes on the individual lots since 1990, Township acquiesced to the non-conforming one acre lot sizes. The trial court further modified the prior approval of the road and drainage system of Maltese Estates to reflect that Gallagher must now comply with the standards set forth in the current ordinance, that Gallagher is required to post a bond with Township in an amount sufficient to cover the cost of the roadways and that Gallagher shall not sell any lots within Maltese Estates until the drainage system is in conformance with the current ordinance.
Township filed a motion for post-trial relief, arguing that the trial court erred in concluding that because Township received real estate tax payments from Gallagher for each lot in Maltese Estates that Township forfeited its right to require Gallagher to redesign the lots to comply with the current two acre minimum requirement. The trial court denied the post trial motion and this appeal followed, wherein Township challenges the trial court's determination that Gallagher need not conform to the present two acre lot size requirement.*fn1
Initially, we address Township's argument that a developer's failure to take the necessary steps to substantially complete improvements required by a plan or to otherwise take steps to preserve the plan's validity beyond the time period set forth in Section 508(4) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508(4), which at the time of plan approval was three years, results in the application of the new updated land ordinance. Section 508(4) of the MPC provides*fn2:
(4) Changes in the ordinance shall affect plats as follows:
(ii) When an application for approval of a plat, whether preliminary or final, has been approved or approved subject to conditions acceptable to the applicant, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied to affect adversely the rights of the applicant to commence and to complete any aspect of the approved ...