Zoning; Special Exception; Applicable Law

Pet. of: Board of Commissioners of Cheltenham Twp., sub nom. Bd. of Commissioners of Cheltenham Twp. v. Hansen-Lloyd, L.P., 166 A.3d 496 (Pa. Cmwlth. 2017), allocatur granted Jan. 29, 2017, appeal docket 3 MAP 2018

This allocatur grant arises from a case of first impression in Bd. of Commissioners of Cheltenham Twp. v. Hansen-Lloyd, L.P., where the Commonwealth Court considered whether, under the Municipalities Planning Code (MPC), the zoning ordinance in effect when a mandatory sketch plan for development was filed applies to a subsequently filed application for special exception, or whether the application for special exception is governed by the zoning ordinance in effect at the time it is filed.  The Commonwealth Court held that filing of a mandatory sketch plan creates a vested right for consideration of the plan as well as any future zoning applications under the zoning ordinance in effect at the time the mandatory sketch plan is filed.

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). The 2008 Ordinance provided that the Age Restricted Overlay District provisions supersede other requirements of the zoning ordinance that may be in conflict, and further permitted age-restricted housing and clubhouse uses by special exception. The 2008 Ordinance also contained a Preservation Overlay District, which specifically exempted developments with “multiple dwelling houses for the elderly.”

In 2008, pursuant to the 2008 Ordinance, Developer submitted a mandatory sketch plan to Cheltenham Township proposing an age-restricted multi-dwelling development on property owned within Cheltenham and Springfield Townships. The sketch plan proposed to create an age-restricted multi-dwelling development on the property with a total of 216 age-restricted units, limited to persons 62 years of age and over. The Commission and the Township reviewed the sketch plan and provided a preliminary analysis of the plan under the 2008 Ordinance, notifying the Developer that a special exception for the age-restricted housing and variances from the setback and Preservation Overlay District provisions was required, and recommending that Developer redesign the site layout so that the setbacks for the property within Cheltenham Township comply with the requirements.

From 2009 until 2015, the sketch plan remained pending, while Developer and the Township negotiated 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.

In 2010, the Township repealed the 2008 Ordinance. 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), which continued the requirement of a special exception for age-restricted housing and clubhouses.

When Developer’s negotiations with Springfield Township regarding the single-family ordinance failed, Developer sought to move forward with its originally proposed age-restricted development, still pending before Cheltenham Township. In May 2015, Developer submitted an application for a special exception with the Zoning Hearing Board (ZHB) seeking the necessary special exception under the 2008 Ordinance to construct: (1) an age-restricted development and (2) a clubhouse.

The ZHB held hearings on the zoning application where the parties disputed which ordinance governed the zoning application. Developer argued the 2008 Ordinance applied because that was the ordinance in effect when the mandatory sketch plan was filed in 2008. 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; therefore, 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 the process by filing its mandatory sketch plan under the 2008 Ordinance, which vested its right to consideration under that ordinance. In determining that the zoning ordinance in effect when the sketch plan was submitted controlled the application for zoning relief, the ZHB relied on Section 508(4) of the MPC, which provides:

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.

Slip Op., at 9 (quoting 53 P.S. §10508(4) (emphasis added)).

In so finding, the ZHB rejected the Township’s reliance on Section 917 of the MPC, the relevant part of which provides:

When an application for either a special exception or a conditional use has been filed with either the zoning hearing board or governing body, as relevant, and the subject matter of such application would ultimately constitute either a land development as defined in section 107 or a subdivision 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.

Slip Op., at 11 (quoting 53 P.S. §10917 (emphasis added)).

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 trial court affirmed the ZHB decision without taking additional evidence.

The Township appealed. The Commonwealth Court affirmed the trial court and ZHB’s application of Section 508(4) as extending to later-filed zoning applications, reasoning:

Although our case law does not directly address the issue before this Court of whether Section 508(4) of the MPC protects only a land development application from newly enacted ordinances or if it extends to a future zoning application, the language in Section 508(4) of the MPC is clear and unambiguous. While a land development application is pending, “no change or amendment of the zoning” shall adversely affect such application. 53 P.S. §10508(4). So long as a land development application is pending, the applicant is 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. This protection naturally extends to decisions regarding zoning relief where such relief is a necessary part of the land development plan.

Slip Op., at 13-14.

In so finding, the Court disagreed with the Township that the ZHB’s determination creates an inherent conflict between Sections 508(4) and 917 of the MPC when “[b]oth sections can be reasonably interpreted depending on which application is filed first. If an applicant first files a subdivision or land development plan, Section 508(4) applies; if an applicant first files an application for zoning relief, Section 917 applies. Such an interpretation gives meaning to both sections.” Id. at 14.

Applying its finding to Developer’s case, the court noted that while Developer did not seek zoning relief until 2015, its sketch plan for land development was pending before the township since 2008; therefore, Section 508(4) protected Developer’s application from the adverse zoning changes created by the 2012 Ordinance, as explained by the court:

To conclude that Section 508(4)’s protection only applies to the land development plans and not zoning applications would eviscerate such protection by enabling municipalities to change zoning ordinances upon receipt of any undesired land development plans to thwart approval. It would also require applicants to request zoning relief first before seeking subdivision or land development approval, as opposed to providing applicants a choice regarding how to proceed. In some cases, requesting zoning relief would be an unnecessary step where a governing body does not approve the land development plan. For these reasons, we conclude that the ZHB properly determined that the 2008 Ordinance governed.

The Pennsylvania Supreme Court granted allocatur to determine:

Did the Commonwealth Court overlook the express language of 53 P.S. 10917 by holding that a zoning application for special exception is governed by an ordinance other than the ordinance in effect when the zoning application was filed?

For more information, contact Kevin McKeon or Dennis Whitaker.