In a decision that reaffirms the caselaw from the 1970s and ’80s that established the rights of developers in Pennsylvania, the Commonwealth Court has confirmed that holdings in Casey and Fernley by the Pennsylvania Supreme Court are alive and well.

In its unreported decision in Chairman of the Board, Inc. v. the Borough of Wilkinsburg Zoning Hearing Board, the Commonwealth Court noted that a municipality is “required to permit Appellant to develop its Property as proposed in the plans submitted with the validity challenge, provided, of course that what is submitted is reasonable, and not injurious to the public health, safety, welfare and morals.”

This court went on to describe the Casey case as the “landmark” decision concerning the remedy for an invalid zoning ordinance and requires a successful challenger to a zoning ordinance to “be granted the relief requested unless the government unit proves that the proposed use will be injurious to the public health, safety and welfare.”

In this case, the Commonwealth Court quoted the following passage from the Casey case:

“Whether a court has the power to grant an applicant-challenger definitive relief upon rendering a zoning ordinance constitutionally infirm… ‘obviously, if judicial review of local zoning action is to result in anything more than a farce, the courts must be prepared to go beyond near invalidation and grant definitive relief.’ To forsake a challenger’s reasonable development plans after all the time, effort and capital invested in such a challenge is grossly inequitable.”

This Commonwealth Court went on, in citing to the Fernley case, that a township “may not retroactively enact a zoning provision that cures the constitutional infirmity in order to avoid a court’s order to allow the challenger’s proposed use.”

The Commonwealth Court also noted, citing to the Supreme Court’s decision in the Casey case, that a successful applicant in a validity challenge, should not be frustrated in his quest for relief by a retributory township.”

In this case, the Pennsylvania Commonwealth Court clearly affirmed the rights of a successful challenger site specific relief after proving the invalidity of a zoning ordinance.

For more information as to challenges to the validity of a zoning ordinance, or the entitlement to site specific relief related thereto, please contact Rob Gundlach at 215.918.3636 or rgundlach@foxrothschild.com.