Subdivision and Land Development in PennsylvaniaAugust 2013 – Articles In the Zone
Article V of the Pennsylvania Municipalities Planning Code (MPC) empowers Pennsylvania municipalities to regulate subdivision and land development by enacting a subdivision and land development ordinance (SALDO). The MPC defines subdivision, but essentially it is the division or redivision of land for any purpose except the lease of land for agricultural purposes. The MPC also defines land development to include the physical improvement of land for any purpose involving a single nonresidential use or two or more residential uses on a lot.
Not all structures constitute land development. In Upper Southampton Twp. v. Upper Southampton Twp. ZHB, 934 A.2d 1162 (Pa. 2007), the Pennsylvania Supreme Court rejected an overly expansive reading of the definition of land development, holding that construction of billboards on already developed land did not trigger the cumbersome land development approval process. Rather, the court reasoned that land development is the “allocation of land in such a way that issues related to public use, water management, sewers, streets and the like must be addressed.” Similarly, the Pennsylvania Commonwealth has held that construction of a roof over a previously approved patio did not constitute land development, Borough of Moosic, 11 A3d 564 (Pa. Cmwlth. 2010), and construction of an accessory structure on already developed property did not require land development approval. Marshall Twp. Bd. of Sup’rs. v. Marshall Twp., 717 A.2d 1 (Pa. Commw. 1998).
The subdivision and land development review and approval process generally consists of two phases: preliminary plan and final plan approval. Applicants may also want to submit a sketch plan to obtain municipal input on design and layout factors prior to preparation of a preliminary plan. In most instances, preliminary plan approval accounts for the majority of the process. Approval of a preliminary plan virtually guarantees approval of the final plan so long as it meets the conditions upon which the preliminary plan was approved. The applicant will need to work closely with his or her engineer and attorney in preparing the preliminary plan application. Pay close attention to municipal filing, escrow and review fees.
A governing body has 90 days to review and render a decision on a subdivision and land development plan. The plan is deemed approved if the municipality does not render a decision within 90 days. Applicants often extend the review period because the process typically takes longer. However, an applicant should never agree to an indefinite extension. Much of the review period is spent receiving and responding to comments from the municipal engineer. The governing body is also required to submit the plans to the county planning commission for comment and to the municipal planning commission for recommendation of approval or denial. No public hearing on a subdivision and land development plan is required but can be held if desired by the municipality.
A governing body is legally obligated to approve a subdivision and land development plan if it meets the provisions of the SALDO. An approved plan is protected for five years from any adverse changes or amendments to the ordinance. Prior to final approval, the applicant is required to post financial security to cover the cost of public improvements. Upon final approval, the applicant needs to record the final plan with the Office of the Recorder of Deeds within 90 days. If a governing body denies a plan, it must provide specific reasons for the denial along with citation to pertinent sections of the ordinance. An appeal can be filed to the Court of Common Pleas within 30 days of the decision.
In certain circumstances, waivers can be obtained from subdivision and land development requirements. Waivers must not be contrary to the public interest and must observe the basic purpose and intent of the ordinance. Waivers are not to be confused with variances from zoning requirements that must go before the zoning hearing board. All waiver requests and reasons in support of same should be requested in writing and listed on the subdivision and land development plan.
While the subdivision and land development process may seem challenging, having the right legal team in place will keep your development on track.