Philomeno & Salamone v. Bd. of Supervisors of U. Merion Twp. and U. Merion Twp.

April 2009Newsletters In The Zone

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The PA Supreme Court held that the filing of a subdivision application, followed by the filing of an inconsistent conditional use application for the same tract, does not serve to withdraw the original subdivision application. Despite the filing of the conditional use application, the municipality is still required to act on the subdivision application within the time limits set forth in Section 508 of the Pennsylvania Municipalities Planning Code.

Philomeno & Salamone (P&S), the equitable owner of 18.67 acres located in Upper Merion Township (the Township), Montgomery County, Pennsylvania, filed an application with the Township seeking to subdivide the property into two parcels and to further subdivide one of the parcels into 17 residential lots. The Township Board of Supervisors (the Board) sought two extensions of time within which to render a decision on the subdivision application, pursuant to Section 508 of the Pennsylvania Municipalities Planning Code (the MPC). The Board’s deadline to render a decision on the subdivision application was December 24, 2003 (the Subdivision Deadline Date).

Prior to the Subdivision Deadline Date, P&S filed a conditional use application with theTownship proposing the development of 28 townhouse units on a 4.89 acre parcel, with the balance of the land being set aside as open space and recreational land. On June 23, 2004, the Board denied the conditional use application. The Board never acted on the subdivision application. After the denial of the conditional use application, P&S filed a complaint in mandamus and a motion for peremptory judgment claiming a deemed approval of the subdivision application under Section 508 of the MPC based on the Board’s failure to render a decision on the subdivision application.

The trial court granted P&S’s motion for peremptory judgment, thereby rendering the subdivision application deemed approved. In doing so, the trial court distinguished the two applications, explaining that a conditional use “addresses the use of the land, while a subdivision plan addresses how the land is to be developed. A conditional use application seeks approval for new and potential uses for the land that, if granted, would then require a later submitted subdivision plan to be filed.” Because of this distinction, the trial court found it unnecessary to apply cases holding that a revised subdivision application causes the time for decision to run from the filing of the revised plan. See Wiggs v. Northampton County Hanover Township Bd. of Supervisors, 441 A.2d 1361 (Pa. Commw. 1982); DePaul Realty Co. v. Borough of Quakertown, 324 A.2d 832 (Pa. Commw. 1974).

The Commonwealth Court reversed the trial court’s decision and held that by filing the conditional use application, P&S abandoned the subdivision plan application. The court further found that the Board’s failure to rule on the subdivision application was a result of “confusion and protracted proceedings” caused by P&S’s filing of a separate and inconsistent conditional use application. The Pennsylvania Supreme Court granted allowance of appeal and held that the filing of a subsequent conditional use application does not effectively withdraw a pending inconsistent subdivision application for the same tract of land, and that Section 508 of the MPC provides for a deemed approval of all applications not acted upon in a timely manner. The Court first noted that “[o]ur courts have long permitted landowners to file inconsistent subdivision or land development applications, and they are entitled to action on all applications.” Further, the Court added that the conditional use application was not intended to revise the subdivision application as the conditional use application dealt with zoning issues as opposed to the subdivision application, which addressed land use. In support of its decision, the Supreme Court cited to Capital Inv. Dev. Corp., 373 A.2d 785 (Pa. Commw. 1977), which held that where two mutually exclusive subdivision plans were submitted and the township failed to act on either application within the required time limits, both plans were deemed approved under Section 508 of the MPC and the developer had the option to pursue either plan. Further, unlike the Commonwealth Court, the Supreme Court found no evidence of confusion on the part of the Board.

Therefore, the Court held that, regardless of the filing of the conditional use application, because the Board did not act on the initial subdivision plan within the mandatory time period under Section 508 of the MPC, the trial court correctly deemed the subdivision application approved.

For more information about this topic, contact Kimberly Freimuth at 215.918.3627 or [email protected].