Case Summary: Borough of Moosic v. Zoning Hearing Board of the Borough of Moosic v. Giuseppe Basile

January 2011Newsletters In the Zone

This case is good news for business owners looking to complete minor expansions to their commercial properties without having to participate in the costs and delays associated with the land development approval process.

In this case, the applicant appealed from the Order of the Court of Common Pleas of Lackawanna County (trial court), which affirmed the decision of the Zoning Hearing Board of the Borough of Moosic (ZHB) denying a building permit to erect a roof over a 20-by-40-foot outdoor concrete patio attached to the applicant’s restaurant.

The question before the Commonwealth Court was whether constructing a roof over a previously approved patio constitutes “land development” under the Subdivision and Land Development Ordinance (SALDO) and Section 107(a) of the MPC. Section 107(a) of the MPC defines “Land Development” as any of the following activities:

(1) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving:

(i) a group of two or more residential or nonresidental buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; or

(ii) the division or allocation of land or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features.

(2) A subdivision of land.

(3) Development in accordance with Section 503(1.1).

The SALDO’s definition of “land development” is essentially the same as the definition of “land development” in the MPC.

The borough argues that the term “land development” includes “any improvement of a nonresidential building.” The borough contends the roof over the patio is an enhancement that increases the value of the building and therefore constitutes an “improvement” to a nonresidential building and is “land development” under the SALDO and MPC.

In contrast, the applicant argues all that is at issue in this appeal is a request to erect a roof over a previously approved patio and the requested roof permit is not the type of “improvement” contemplated under Section 107(a) of the MPC or the SALDO as “land development.”

The Pennsylvania Supreme Court provided clarification on the definition of “land development” in a 2007 case relating to the construction of a billboard, stating:

The definition of land development, of course, does not exist in a vacuum. The significance of the definition is in the consequence of a finding that a proposed land use involves development; that consequence is the requirement of a land development plan. The statutory definition of a development plan in the MPC plainly speaks of large-scale development and the issues that necessarily arise with such development.

Moreover, the Commonwealth Court found the borough’s very broad interpretation of the SALDO and MPC as requiring land development approval for any improvement to property, no matter how minor, is inconsistent with the Supreme Court’s decision in Upper Southampton and the Commonwealth Court’s case law. See Tu-way Tower Co. v. Zoning Hearing Board of the Township of Salisbury, 688 A.2d 744 (Pa.Cmwlth.1997) (holding the proposed extension or building of new towers did not constitute subdivision or land development under the MPC); Marshall Township Board of Supervisors v. Marshall Township Zoning Hearing Board, 717 A.2d 1 (Pa.Cmwlth.1988) (holding construction of a pole was not “land development” or “subdivision” within the MPC); and Kirk v. Smay, 367 A.2d 706 (Pa.Cmwlth.1976) (holding construction of a single medical office building on the grounds of a completed shopping center did not rise to the level of land development as defined in the MPC).

Based on the above, the Commonwealth Court held the construction of a roof over a previously approved patio does not constitute land development under the SALDO or the MPC and, therefore, the applicant is not required to obtain land development approval in order to receive the requested roof permit.

For more information, please contact Robert W. Gundlach, Jr. at 215.918.3636 or [email protected].