Key Points:

• Nonconforming lots can retain value. As long as a lot was lawfully created, owners may still have a path to reasonable use under Pennsylvania law.
• Floodplain rules are technical. Local boards must apply the correct legal standard and evaluate modern engineering methods, not rely on blanket assumptions.
• Old plans can mislead. An asterisk or footnote on a recorded map does not carry the same legal weight as a properly adopted restriction.

A recent decision by Pennsylvania’s Commonwealth Court opens the door for owners and developers to making use of older or flood-affected parcels once deemed impossible to develop.

In its June 27, 2025 decision in People's Property, LLC v. Lower Nazareth Township ZHB, the court reaffirmed that unclear notations and outdated assumptions do not automatically erase a landowner’s right to build.

The court reversed a lower court decision that barred development of two small residential lots in a mapped floodplain. The case highlights a common tension across Pennsylvania: when do old subdivision plans, zoning updates, or floodplain overlays truly extinguish development potential — and when do they simply need a closer look?

A Dispute Decades in the Making

The two lots were created in 1973 as part of a subdivision in Lower Nazareth Township, Northampton County. Each lot measures about one-third of an acre, smaller than the one-acre minimum now required in the township’s low-density district.

In the 1980s, township officials revised the subdivision plan and added an asterisk labeled “Floodplain Preservation Area.” A note suggested that “this land” might someday be merged with a neighbor or sold to a conservancy. That small mark on the map would later carry big consequences.

When new owners applied decades later to build single-family homes with on-lot septic systems, the township declared the lots non-developable. The zoning board denied their appeals, the trial court upheld the decision and the property owners appealed again — this time to the Commonwealth Court.

Ambiguity Is Not a Ban

Senior Judge Mary Hannah Leavitt, writing for the panel, found that neither the 1980s resolution nor the vague plan language extinguished the lots’ development rights. The asterisk and footnote were too ambiguous to create a binding restriction or preservation area.

The court emphasized that restrictive covenants must be clear and specific. Because the documents were not, the township’s interpretation went too far. The court concluded that the two parcels remain lawful nonconforming lots. Although smaller than today’s zoning standards, they were legally created and can still qualify for potential development if other criteria are met.

Floodplain Question Still Looms

The second issue involved the township’s Floodplain Management Ordinance, which prohibits homes and septic systems in AE flood zones. The developers sought variances, arguing that Pennsylvania’s Department of Environmental Protection allows on-lot systems in floodplains, as long as they are outside the floodway and meet safety and engineering standards.

The Commonwealth Court found that the zoning board denied the request using the wrong legal test. The trial court repeated that mistake, the panel found, by applying the general variance standard instead of the specific floodplain variance criteria.

The panel corrected both errors and ordered the trial court to reconsider the case using the proper floodplain provisions. Those standards focus on whether the proposed design would raise flood levels or endanger public safety.

The Bottom Line

The Commonwealth Court’s decision does not guarantee new construction, but it restores both parcels as legitimate lots and requires a new hearing under the correct standards. 

For real estate professionals, it is another reminder that persistence, careful records, and a strong understanding of process can keep a development opportunity alive long after others have written it off.

For more information, please contact Hannah Soisson at hsoisson@foxrothschild.com or 215.918.3548 or any member of Fox Rothschild’s Real Estate Department.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the author(s) and not necessarily this law firm or its clients. Prior results do not guarantee a similar outcome.