Comprehensive Plans Not Considered in Substantive Challenges

October 2010Newsletters In the Zone

When filing a validity challenge, inconsistency with a comprehensive plan cannot be a proper basis for a substantive challenge. Briar Meadows Development, Inc. v. South Centre Township Board of Supervisors, 2010 WL 3239284 (Pa. Cmwlth. 2010).

In Briar Meadows, the applicant filed a curative amendment application with the South Centre Township Board of Supervisors seeking to rezone its property from agricultural to commercial/industrial. After a hearing, the Board of Supervisors denied the curative amendment application. The applicant appealed the Board’s decision to the Northumberland County Court of Common Pleas. On appeal, the Commonwealth Court affirmed the decision of the Court of Common Pleas.

The appellant argued the zoning ordinance was invalid because it is inconsistent with the comprehensive plan. The Commonwealth Court rejected this argument, relying on Section 303(c) of the Pennsylvania Municipalities Planning Code, which states:

“Notwithstanding any other provision of this act, no action by the governing body of a municipality shall be invalid nor shall the same be subject to challenge or appeal on the basis that such action is inconsistent with, or fails to comply with, the provision of the comprehensive plan.”

53 P.S. § 10303(c).

In addition, the Commonwealth Court relied on its prior decision in CACO Three, Inc. v. Board of Supervisors of Huntingdon Township, 845 A.2d 991 (Pa. Cmwlth. 2004) and stated as follows:

“[w]hile a comprehensive plan is a useful tool for guiding growth and development, it is by its nature, an abstract recommendation as to land utilization. Inconsistency with a comprehensive plan is not a proper basis for denying a land development plan. Similarly, it cannot be a basis for a substantive challenge to a zoning ordinance.

In considering a curative amendment, the question for the court to determine is the validity of the zoning ordinance. The argument that the zoning ordinance is inconsistent with the comprehensive plan is not sufficient to prove the zoning ordinance is invalid.

For more information, please contact Carrie B. Nase at 215.299.2030 or [email protected].