Developer’s change in proposed sewage treatment for planned subdivision is subject to zoning law in effect at the time the plan for the subdivision was filed, Commonwealth Court says.
In 2001, developer Heritage Building Group filed a preliminary subdivision and land development plan, but waived its right to have to the Township make a decision on the plan within 90 days. Apparently, the Township has never acted on the Plan.
The same year, the Township changed its zoning ordinance to mandate that no property may be altered, graded, disturbed or cleared of trees without a zoning permit. The Township’s earlier (1991) zoning ordinance had no such provision.
Meanwhile, Heritage applied for zoning variances that would allow it to build a centralized sewage system for the development because the soil is not suitable for on-lot systems. The Township’s Zoning Hearing Board denied the applications twice.
Changing tactics in 2007, Heritage decided to place fill on the lots which, after four years, would render them suitable for on-lot systems. It applied for a zoning permit to do so. The Township zoning officer denied the application on the ground that the fill permit could only be granted if Heritage demonstrated compliance with other zoning requirements; it had not, so the officer denied the permit. The ZHB affirmed.
The Court of Common Pleas reversed, holding that the Township could not hold apply the 2001 zoning ordinance to an application made in furtherance of a subdivision plan that was filed before the ordinance went into effect.
The Commonwealth Court affirmed, relying on Section 508(4)(i) of the Municipalities Planning Code, 53 P.S. §10508(4)(i), which provides:
“From the time an application for approval of a plat, whether preliminary or final, is duly filed as provided in the subdivision and land 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” (emphasis added)
In re Appeal of Heritage Bldg. Group, Inc., 2009 Pa. Commw. LEXIS 761 (Pa. Commw. Ct. July 24, 2009).
