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Board of Commissioners of Cheltenham Township v. Hansen-Lloyd, L.P.

Commonwealth Court of Pennsylvania

July 6, 2017

Board of Commissioners of Cheltenham Township, Appellant
v.
Hansen-Lloyd, L.P.

          Argued: May 1, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MICHAEL H. WOJCIK, Judge.

          OPINION

          MICHAEL H. WOJCIK, Judge.

         The Board of Commissioners of Cheltenham Township (Township) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) affirming a decision of the Cheltenham Township Zoning Hearing Board (ZHB), which granted Hansen-Lloyd, L.P.'s (Developer) application for special exception and other zoning relief to construct an age-restricted housing development on its property. In granting the zoning relief, the ZHB applied the ordinance in effect when Developer filed its sketch plan, not the later-adopted ordinance in effect when it filed the application for zoning relief. In this case of first impression, we consider whether, under the Municipalities Planning Code (MPC), [1] the filing of a mandatory sketch plan creates a vested right for consideration of the plan as well as any future zoning applications related thereto under the ordinance in effect when the sketch plan was filed. Upon review, we conclude the MPC creates a vested right for pending plans and affirm.

         I. Background

         A. Relevant Ordinances

         In 2008, the Township amended the Cheltenham Code by enacting a zoning ordinance that created an Age Restricted Overlay District in Cheltenham Township (2008 Ordinance). Supplemental Reproduced Record (S.R.R.) at 50b-59b. The 2008 Ordinance also provided that the underlying zoning district shall not apply and that the Age Restricted Overlay District provisions shall supersede other requirements of the zoning ordinance that may be in conflict. The 2008 Ordinance further permitted age-restricted housing and clubhouse uses by special exception. The 2008 Ordinance contained a Preservation Overlay District, which specifically exempted developments with "multiple dwelling houses for the elderly." Reproduced Record (R.R.) at 330a.

         In 2010, the Township repealed the 2008 Ordinance. An age-restricted overlay district did not exist in Cheltenham Township for two years.

         Then, in 2012, the Township enacted a new ordinance reinstating an Age Restricted Overlay District with more stringent dimensional criteria than the 2008 Ordinance (2012 Ordinance). As a result of the increase in dimensional requirements, the density of such age-restricted residential developments after 2010 was substantially reduced. The 2012 Ordinance continued the requirement of a special exception for age-restricted housing and clubhouses.

         B. Facts

         Developer owns a tract of land located at 1777 East Willow Grove Avenue consisting of approximately 43 acres, of which roughly 10 acres are located within Cheltenham Township and the balance is located within neighboring Springfield Township. On December 23, 2008, Developer submitted a mandatory "tentative sketch plan" (sketch plan) to the Township, regarding the 10 acres within Cheltenham Township (property) pursuant to Section 2154-08 of the 2008 Ordinance. The sketch plan proposed to create an age-restricted multi-dwelling development on the property containing eight four-story buildings with 27 units per building for a total of 216 age-restricted units, limited to persons 62 years of age and over. The sketch plan included 388 parking spaces, located under the units and on the surface, as well as a 2, 400-square-foot community building or "clubhouse." The sketch plan also proposed to demolish a neglected, gilded-age mansion located on the property.

         The Montgomery County Planning Commission (Commission) and the Township reviewed the sketch plan and provided a preliminary analysis of the plan under the 2008 Ordinance. Both the Township and Commission notified Developer that a special exception for the age-restricted housing and variances from the setback and Preservation Overlay District provisions were required. S.R.R. at 41b-42b, 43b-47b. In addition, the Commission advised that the municipal boundary line constituted an imputed property line for purposes of zoning and development and recommended that Developer redesign the site layout so that the setbacks for the property within Cheltenham Township comply with the requirements. S.R.R. at 46b. The Township noted that it asked its solicitor for a ruling on whether the Township could consider the sketch plan prior to the project receiving appropriate zoning relief. S.R.R. at 42b.

         From 2009 until 2015, the sketch plan remained pending, while Developer and the Township pursued negotiations regarding the adoption of an ordinance amendment to permit an alternative single-family residential development on the property, preservation of the mansion house, and the incorporation of acreage in both townships into one community. During that time, the Township accepted Developer's numerous offers (approximately 40) to extend the MPC's 90-day review period. Ultimately, on March 18, 2015, the Township adopted a new ordinance amendment that permitted up to seventeen (17) single-family residential dwellings on the property (2015 Ordinance).[2] However, Developer also pursued relief from Springfield Township to adopt a reciprocal ordinance amendment governing a single-family development on the property located within its township, which it declined to adopt, thereby stymieing Developer's alternative single-family residential development. Consequently, negotiations with the Township ended, and Developer sought to move forward with its originally proposed age-restricted development, which was still pending before the Township.

         In May 2015, Developer submitted an application for a special exception with the ZHB seeking necessary zoning relief to construct its proposed age-restricted development. In the application, Developer requested relief under the 2008 Ordinance. Specifically, Developer requested a special exception to construct: (1) an age-restricted development (Section 295-242.B.1 of 2008 Ordinance) and (2) a clubhouse (Section 295-242.B.3 of the 2008 Ordinance). Developer also sought a confirmation or interpretation, or in the alternative a variance that: (1) the Township's boundary line is not a property line for the setback requirements (Section 295.244 of 2008 Ordinance); (2) the requirements of the Preservation Overlay District do not apply (Section 295-187.B of 2008 Ordinance); and, (3) additional parking spaces are not required for the employees and clubhouse use.

         The ZHB held hearings on the zoning application. The parties disputed which ordinance governed the zoning application. Developer argued the 2008 Ordinance applied because that was the ordinance in effect when it filed its mandatory sketch plan in 2008. Conversely, the Township asserted the 2012 Ordinance governed because that was the ordinance in effect when Developer filed its zoning application. Developer stipulated that its zoning requests would not satisfy the objective criteria under the 2012 Ordinance. Thus, a determination as to what ordinance applied was critical to the outcome of the zoning application.

         Ultimately, the ZHB ruled that the 2008 Ordinance, not the 2012 Ordinance, governed because Developer initiated this process by filing its mandatory sketch plan under the 2008 Ordinance, which vested its right to consideration under that ordinance. The ZHB found that the zoning application involves the same project and plan as the sketch plan, which was filed and accepted by the Township when the 2008 Ordinance was in effect. Relying on Section 508(4)(i) of the MPC, 53 P.S. §10508(4)(i), the ZHB determined that the zoning ordinance in effect when the sketch plan was submitted controlled the application for zoning relief. The ZHB rejected the Township's reliance on Section 917 of the MPC, [3] in support of its position that the 2012 Ordinance applied explaining this section applies only where an applicant seeks zoning relief first before filing a subdivision or land development plan, which is not the case here. The ZHB opined, "When an applicant chooses to proceed with a plan first, followed by a zoning hearing board application, Section 508(4)(i) of the MPC controls, and thus the zoning provisions in effect on December 23, 2008 apply to this Application." ZHB Opinion, 1/28/16, at 13; R.R. at 234a.

         Upon determining that Developer met the specific criteria under the 2008 Ordinance applicable to an age-restricted development and clubhouse, the ZHB granted Developer's requests for special exceptions. The ZHB also determined that the municipal boundary line between Cheltenham Township and Springfield Township did not represent a property line from which setbacks must be calculated. Finally, the ZHB found that the provisions of the Preservation Overlay District did not apply to the proposed development and that no additional parking for employees was needed for the clubhouse.

         The Township appealed to the trial court, which affirmed, without taking additional evidence. The Township's appeal to this Court followed.[4]

         II. Issues

         The Township contends that the ZHB erred by applying the 2008 Ordinance when, at the time Developer filed its zoning application, the 2012 Ordinance was in effect. According to the Township, when a sketch plan applicant fails to file an application for a special exception for six years after the sketch plan is submitted, and the zoning ordinance is amended in the interim, Section 508(4) of the MPC does not protect the application for special exception from changes to the zoning ordinance. In addition, the Township asserts that the ZHB erred in determining the municipal boundary line between townships did not constitute a property line for purposes of measuring setbacks within Cheltenham Township. Finally, the Township argues that the ZHB erred in issuing an unauthorized advisory opinion.

         III. Discussion

         A. ...


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