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In re Appeal of Board of Commissioners of Cheltenham Township

Supreme Court of Pennsylvania

July 17, 2019

IN RE: APPEAL OF THE BOARD OF COMMISSIONERS OF CHELTENHAM TOWNSHIP FROM THE DECISION DATED DECEMBER 16, 2015, OF THE ZONING HEARING BOARD OF CHELTENHAM TOWNSHIP APPEAL OF: BOARD OF COMMISSIONERS OF CHELTENHAM TOWNSHIP

          ARGUED: December 4, 2018

          Appeal from the Order of the Commonwealth Court at No. 1317 CD 2016 dated July 6, 2017 Affirming the Order of the Court of Common Pleas of Montgomery County, Civil Division, at No. 2016-00752, dated July 7, 2016 and exited July 11, 2016.

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          BAER JUSTICE.

         Subsection 508(4)(i) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10508(4)(i), precludes a municipality from changing its "zoning, subdivision or other governing ordinance or plan" subsequent to the filing of a land development application and then applying the new version of any of these municipal enactments to the then-pending application. In this appeal, we are tasked with determining whether Subsection 508(4)(i)'s protection of pending land development applications filed with a municipality's governing body extends to zoning applications submitted to its zoning hearing board that are: (1) related to the land development application, and (2) filed with the zoning hearing board during the pendency of the land development application and after an adverse zoning change. For the reasons that follow, we conclude that Subsection 508(4)(i)'s protection does extend to zoning applications under these circumstances. Because the Commonwealth Court reached the same conclusion, we affirm the order of that court.

         I. Legal Background

         A. Introduction

         The MPC grants many powers to municipalities, including the authority to regulate: (1) subdivision and land development through the enactment of a subdivision and land development ordinance (SALDO), 53 P.S. § 10501, and (2) land use through the enactment of zoning ordinances, id. § 10601. As explained further below, part and parcel of a municipality's ability to regulate in this regard is the authority of a municipality's governing body or planning agency to approve or deny applications submitted to it for approval of "plats," or subdivision and land development plans, under the municipality's SALDO, and the authority of a municipality's zoning hearing board to approve or deny applications submitted to it for certain zoning relief pursuant to the municipality's zoning ordinances.[1] While the processes for land development approval and zoning approval are distinct from each other, there are instances where a landowner needs to obtain both types of approval in order to develop his property as desired. This case presents us with one of those instances. Accordingly, and for purposes of facilitating a better understanding of the issue before us, we begin with a brief summary of the law governing each process as is relevant to the current dispute.[2]

         B. Land Development

         The MPC mandates that a municipality's SALDO require that all land development plans for land "situated within the municipality … be submitted for approval to the governing body." Id. § 10501. The MPC also provides that a municipality's SALDO may include provisions concerning the specifications for, and submittal and processing of, land development plans, including "provisions for preliminary and final approval and for processing of final approval by stages or sections of development." Id. § 10503(1). Additionally, pursuant to the MPC, the municipality's governing body has exclusive jurisdiction to render final adjudications on all land development applications submitted for approval pursuant to Section 508 of the MPC, discussed below. Id. § 10909.1(b)(2).

         In outlining the provisions regarding approval of land development applications, Section 508 provides information relating to, inter alia, the time and manner in which a municipality's governing body must render a decision on a land development application, as well as the effect of ordinance changes on a land development application. Most relevant to this appeal, Section 508 provides:

(4) Changes in the ordinance shall affect plats as follows:
(i) From the time an application for approval of a plat, whether preliminary or final, is duly filed as provided in the subdivision and land development ordinance, and while such application is pending approval or disapproval, no change or amendment of the zoning, subdivision or other governing ordinance or plan shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed. In addition, when a preliminary application has been duly approved, the applicant shall be entitled to final approval in accordance with the terms of the approved preliminary application as hereinafter provided. However, if an application is properly and finally denied, any subsequent application shall be subject to the intervening change in governing regulations.

Id. § 10508(4)(i).

         Pursuant to the MPC's authorization, Cheltenham Township, the municipality involved in the dispute here, has a SALDO, known as the "Cheltenham Township Subdivision Code of 1974" (Subdivision Code). With respect to land development plans, the Subdivision Code includes articles pertaining to, inter alia, "Design Standards," "Plan Requirements," and "Plan Processing Procedures." Cheltenham Township, Pa., Subdivision Code of 1974 ch. 260, Articles III-V. Most relevant to this appeal, the Subdivision Code requires submission of a "tentative sketch plan" when, as here, the proposed land development "equals or exceeds eight (8) dwelling units or five (5) acres of land or when the plan includes nonresidential development." Id. § 260-35(A.). Section 260-35 further outlines the tentative sketch plan requirements and provides that the processing procedures for the tentative sketch plan are identical to those used for submission of preliminary land development plans. Id. § 260-35. Additionally, with respect to land development plans generally, the Subdivision Code mandates that any plan must meet the requirements of Cheltenham Township's zoning ordinance, discussed below, "unless … special exceptions have been granted by" the Cheltenham Township Zoning Hearing Board (ZHB). Id. § 260-31.

         C. Zoning

         The MPC provides that, in enacting zoning ordinances regulating the use of land, a municipality may include "provisions for special exceptions."[3] 53 P.S. § 10603(c)(1). The MPC further requires every municipality that enacts a zoning ordinance to create a zoning hearing board, which has exclusive jurisdiction to render final adjudications on applications for special exceptions. Id. §§ 10901, 10909.1(a)(6). The MPC also includes a provision addressing the effect of ordinance changes on an application for a special exception, when the subject matter of that application would ultimately constitute land development. That provision, Section 917 of the MPC, provides that when an application for special exception has been filed with the zoning hearing board,

and the subject matter of such application would ultimately constitute … a land development as defined in section 107 … no change or amendment of the zoning, subdivision or other governing ordinance or plans shall affect the decision on such application adversely to the applicant, and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed. Provided, further, should such an application be approved by … the zoning hearing board … applicant shall be entitled to proceed with the submission of … land development … plans within a period of six months or longer as may be approved by … the zoning hearing board … following the date of such approval in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed before … the zoning hearing board …. If … a land development … plan is so filed within said period, such plan shall be subject to the provisions of section 508(1) through (4) and specifically to the time limitations of section 508(4) which shall commence as of the date of filing such land development … plan.

Id. § 10917 (footnotes omitted).

         Pursuant to the MPC, Cheltenham Township also has a zoning ordinance, known as the "Zoning Code." Relevant to this appeal, on February 26, 2008, the Cheltenham Township Board of Commissioners (Commissioners) enacted an ordinance amending the Zoning Code to create an age-restricted overlay district in the township (the "2008 Zoning Ordinance"). The 2008 Zoning Ordinance permitted age-restricted housing and clubhouse uses by special exception. See Cheltenham Township, Pa., Zoning Code ch. 295, § 295-242(B.)(1), (3) (2008). As will be discussed infra, Developer initially sought to develop its property at the time the 2008 Zoning Ordinance was in effect. Subsequently, on July 21, 2010, the Commissioners enacted an ordinance amending the Zoning Code to repeal the age-restricted overlay district created by the 2008 Zoning Ordinance in its entirety.

         No age-restricted overlay district existed in the township until the Commissioners enacted an ordinance on February 15, 2012, which created a new age-restricted overlay district in the township (the "2012 Zoning Ordinance"). While the 2012 Zoning Ordinance also permitted age-restricted housing and clubhouse uses by special exception, see Cheltenham Township, Pa., Zoning Code ch. 295, § 295-242(B.)(1), (3) (2012), it contained more stringent dimensional criteria than the 2008 Zoning Ordinance. As explained in detail below, it is the Commissioners' enactment of the 2012 Zoning Ordinance that has spurred the dispute in this matter.

         II. Factual Background and Procedural History

         Having set forth the state and local law relevant to this matter, we now proceed with a discussion of the pertinent facts and procedural history. Hansen-Lloyd, L.P., (Developer) owns a large tract of land, approximately 10 acres of which are located in Cheltenham Township, and approximately 33 acres of which are located in Springfield Township. On the acreage located in Cheltenham Township (Property), Developer sought to build an age-restricted housing development consisting of 8 buildings that were 4 stories high, 388 parking spaces, and a clubhouse. Thus, under the Subdivision Code (i.e., Cheltenham Township's SALDO), Developer was required to submit a tentative sketch plan for the development to the Commissioners for approval. See Cheltenham Township, Pa., Subdivision Code of 1974 ch. 260, § 260-35(A.) (requiring the submission of a "tentative sketch plan" for proposed developments that "equal[] or exceed[] eight (8) dwelling units or five (5) acres of land or when the plan includes nonresidential development").

         On December 23, 2008, Developer submitted its mandatory tentative sketch plan (2008 Sketch Plan) to the Commissioners, who acknowledged receipt of the plan through the township engineer by letter dated January 14, 2009.[4] At the time, the 2008 Zoning Ordinance permitting age-restricted housing and clubhouse uses by special exception was in effect. Consequently, the January 2009 letter notified Developer that a preliminary analysis of the 2008 Sketch Plan revealed that, inter alia, Developer would need to obtain zoning relief in the form of a special exception for the age-restricted housing use.

         Thereafter, Developer and the Commissioners entered negotiations that spanned years regarding development of the Property, including the possibility of incorporating the Property and the contiguous acreage located in adjacent Springfield Township that Developer also owned into one community. During these lengthy negotiations, the Commissioners and Developer agreed to approximately 40 extensions of time for the Commissioners to review Developer's 2008 Sketch Plan. See generally Section 508 of the MPC, 53 P.S. § 10508 (prescribing the time in which a governing body must act upon an application for approval of a land development plan such as the 2008 Sketch Plan and providing that an applicant can agree in writing to an extension of time). To date, the 2008 Sketch Plan is still pending with the Commissioners.[5]

         Eventually, the negotiations between Developer and the Commissioners concerning alternate plans for the Property failed. Developer thus sought to move forward on its originally proposed age-restricted housing development set forth in the 2008 Sketch Plan that remained pending before the Commissioners. Accordingly, in May 2015, Developer filed a zoning application (the 2015 Zoning Application) with the ZHB for the zoning relief it required to construct the age-restricted housing development on the Property. As is pertinent here, while the 2012 Zoning Ordinance had replaced the 2008 Zoning Ordinance by this time, Developer sought special exceptions to permit the age-restricted housing and clubhouse uses under the 2008 Zoning Ordinance in effect at the time it filed its 2008 Sketch Plan.

         The ZHB held several hearings, during the course of which the parties disputed the proper ordinance to apply in reviewing Developer's 2015 Zoning Application. As indicated above, Developer argued in favor of applying the 2008 Zoning Ordinance, which was in effect at the time Developer filed its 2008 Sketch Plan that remained pending before the Commissioners. Developer took the position that the 2008 Zoning Ordinance controlled pursuant to Subsection 508(4)(i) of the MPC, because no change in the zoning ordinance can adversely affect a pending land development plan. In contrast, the

         Commissioners argued in favor of applying the 2012 Zoning Ordinance, which was in effect at the time Developer filed its 2015 Zoning Application before the ZHB. The Commissioners claimed that the 2012 Zoning Ordinance governed pursuant to Section 917 of the MPC, which prevents zoning changes from adversely affecting the decision on a pending zoning application and entitles the applicant to a decision based on the ordinances in effect at the time the zoning application is filed. As noted, a determination as to which ordinance applied was critical to the ZHB's decision on the 2015 Zoning Application, as the parties stipulated that Developer's zoning requests would not satisfy the more stringent special exception criteria under the 2012 Zoning Ordinance.

         The ZHB concluded that the 2008 Zoning Ordinance governed its review of the 2015 Zoning Application, which it ultimately granted. In reaching its conclusion, the ZHB found Subsection 508(4)(i) of the MPC to be "clear and controlling."[6] ZHB Decision, 1/28/2016, at 11. Notwithstanding that it was rendering a decision on Developer's 2015 Zoning Application, and not the 2008 Sketch Plan that remained pending before the Commissioners, the ZHB explained that it was clear from the record that the 2008 Sketch Plan and the plan filed in conjunction with the 2015 Zoning Application were the same. As such, the ZHB posited, Developer was not trying to "bait and switch" the Commissioners or ZHB by seeking relief based on a plan filed with the 2015 Zoning Application that differed from the 2008 Sketch Plan. Id. In other words, Developer sought zoning relief incident to and necessary for its pending land development application.

         In response to the Commissioners' argument, the ZHB concluded that Section 917 of the MPC was inapplicable to the matter before it.[7] The ZHB explained that Section 917 applies where an applicant chooses to file its zoning application first, followed by the submission of a land development application once a decision on its zoning application is made. Id. at 12 (positing further that Section 917 was included in the MPC to protect the applicant who "chooses to obtain zoning relief with regard to its proposed use before going to the expense of filing full-blown land development … plans"). The ZHB reasoned that, here, Developer chose to file its 2008 Sketch Plan prior to filing its 2015 Zoning ...


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