Validity Challenges: What Happens If I Win?

November 2010Newsletters In the Zone

A validity challenge is initiated by a landowner who seeks to void a restriction affecting his or her desired use of land. Under the Pennsylvania Municipalities Planning Code (the MPC), a landowner can present a challenge to the zoning hearing board or, if coupled with a proposed curative amendment to the ordinance, to the municipal governing body. A zoning ordinance is presumed valid unless the challenging party can show the ordinance is exclusionary, unreasonable or not substantially related to the police power interest the ordinance purports to serve.

Given the time and resources required to challenge an invalid zoning ordinance, Pennsylvania law recognizes there must be some incentive in place to bring a validity challenge. Under the doctrine of site-specific relief, a successful challenger is granted approval of the proposed development as a reward. The purposes of this doctrine are two-fold. Not only does it reward a successful challenger, but it also encourages municipalities to eliminate exclusionary zoning provisions from their zoning ordinance or suffer the consequences of unplanned development.

But does that mean a successful challenger can build whatever it wants? Under Pennsylvania law, the answer is no. Case law is clear that a successful challenger is awarded approval of the proposed development only to the extent it complies with the other valid provisions of the ordinance. Additionally, Section 609.1(c) of the MPC, 53 P.S. § 10609.1, sets forth five planning factors for courts and municipalities to consider when fashioning relief. These include site suitability and impact on public facilities, residential needs, agricultural lands and environmentally sensitive areas. However, Pennsylvania courts have consistently stated a successful challenger cannot be denied approval of a proposed development on the basis of the reviewing criteria alone.

On a practical level, courts will often remand a successful challenge back to the municipality to fashion relief in accordance with the court’s opinion. In such circumstances, the municipality may be willing to waive other zoning requirements to settle the case. After all, it is the municipality that had the invalid zoning ordinance. For example, in C & M Developers v. Bedminster Zoning Hearing Board, 820 A.2d 143 (Pa. 2002), the Pennsylvania Supreme Court invalidated a one-acre minimum lot size requirement because, when considered in conjunction with the other zoning requirements, it rendered the zoning ordinance unduly restrictive. Although the court’s invalidation seemed limited to the minimum lot size requirement, on remand, the township and the developer negotiated a settlement agreement that provided for relief from other provisions of the zoning ordinance as well, including density and impervious limitations.

While the prospect of site-specific relief is attractive, successfully challenging a zoning ordinance is no small feat. Not only can proceedings last several years, but there are also numerous expenses involved, such as application fees, engineering costs, consultant/expert witness fees, court reporter charges and, of course, legal fees.

In a recent victory, Fox Rothschild attorneys successfully challenged the validity of a zoning restriction that required landowners to preserve 75 percent of the agricultural soils on their properties, no matter the size, location or zoning designation. The relief resulting from this victory is yet to be determined.

The bottom line, when it comes to winning a validity challenge, is the old saying: “To the victor goes the spoils!”

For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].