Decision Regarding SALDO Waivers Could Streamline Plan Approval Process

October 2012Articles In the Zone

In Ray v. Board of Supervisors of East Pikeland Township [1] the Chester County Court of Common Pleas issued a decision that could prove useful to developers looking to obtain a decision on SALDO waivers prior to the preparation and submission of land development plans. In Ray, the court held that an appeal from the initial grant of subdivision waivers was premature where the Township had not yet issued a decision on the applicant’s preliminary plans.

This case arose from the Phoenixville Area School District’s efforts to expand the East Pikeland Elementary School. In conjunction therewith, the District requested the Township waive the inclusion of certain information in the preliminary plan that would otherwise be required under the Township Subdivision and Land Development Ordinance. Prior to issuing a decision on the preliminary plan, the Township granted the requests for waivers that was memorialized in a letter from the Board of Supervisors. Neighboring property appealed, contending that the grant of waivers was arbitrary and capricious, and violated the law in various ways.

The District intervened and filed a Motion to Quash the appeal on the basis the appeal was interlocutory and therefore, premature. In granting the Motion to Quash, the court found that waivers are only part of an applicant’s preliminary land development plans and any allowance of waivers necessarily precedes the applicant’s submission of a preliminary plan. Regardless of whether the waivers are granted, the Township may still render a decision approving or denying the development plan which could render an appeal of waivers moot.

Accordingly, the court held that the grant of waivers could not be appealed unless and until the board enters a decision to approve or deny a preliminary development plan. The court’s decision turned upon its determination that the grant of waivers did not constitute a “decision” under Section 107(b) of the MPC, which defines that term as a “final adjudication of the board” and provides that all “decisions” can be appealed to the court of common pleas. The court found that were it otherwise, interested parties would potentially be required to appeal seriatim whenever during the approval process a waiver or modification was granted.

This case could prove useful in that it provides authority for the proposition that a landowner can apply for and receive waivers prior to preparation and submission of land development plans. This could potentially streamline the plan approval process and minimize plan revision and review. It could also allow a land owner to get a decision on a particularly important waiver request prior to undertaking the time and expense to prepare full land development plans.

[1] 60 Ches. Co. Rep. 337 (C.C.P.Chester 2012)