Commonwealth Court Supports a Waiver To a Requirement Under SALDO

January 2014Articles In the Zone

In an unreported case titled, Cornell Homes v. Upper Darby Township, the Pennsylvania Commonwealth Court upheld the decision of the Delaware County Court of Common Pleas to reverse a decision of the Upper Darby Township Town Council to deny a waiver under SALDO, to the minimum horizontal curve radius and the subdivision plans based thereon.

In Cornell Homes, the applicant submitted preliminary subdivision and land development plans seeking to subdivide the subject property into 24 attached single-family dwelling lots. As part of this application, the applicant requested, pursuant to Section 512.1 of the MPC, a modification under SALDO which required a minimum horizontal curve radius of 100 feet.

Before the Town Council, the applicant submitted detailed testimony to support its argument that the “literal enforcement” of this horizontal curve radius requirement would exact undue hardship because of peculiar conditions pertaining to the subject property and that the grant of such a waiver would not be contrary to the public interest and that the purpose and intent of the ordinance requirement at issue. Town Council provided testimony for the record, primarily from its Fire Chief, as to safety concerns with the proposed horizontal curve radius.

In upholding the trial court’s order to reverse the decision, the Commonwealth Court found that the record did not support the Town Council’s decision; thereby specifically finding that the Fire Chief’s safety concerns were based upon speculation and did not constitute competent evidence to support the Town Council’s decision. The Fire Chief did not offer any concrete examples to support his testimony and acknowledged that some of his concerns could be addressed by a parking ordinance.

In addition, the Commonwealth Court noted that, in order to construct a horizontal curve radius in compliance with SALDO, a variance from a separate requirement in the Zoning Ordinance would need to be obtained by the applicant. The Commonwealth Court found that, without sufficient evidence to support a finding that granting the proposed modification would actually create or result in safety issues, the Town Council erred in concluding that granting the requested waiver would not be in the public interest.

In summary, this case shows how important it is to put detailed evidence into the record to support any requests for waiver. In addition, to the extent that an applicant can prove that the failure to grant a requested waiver will result in the need for one or more variances under the zoning ordinance, then all the better.

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