A recent decision from the Pennsylvania Commonwealth Court provides a good summary of the role of zoning officer and underscores the importance for property owners to publish determinations of a zoning officer.

In Wayne Property Acquisition v. Radnor Township, the court confirmed that the Municipal Planning Code gives developers with the option to have all zoning issues resolved before submitting a land development application. The law allows those issues to be decided preliminarily with a Zoning Officer, with the right to appeal any such determinations of the Zoning Hearing Board.

This case also highlights the difficulty for an applicant to obtain subdivision or land development approval for a project when it is being opposed by municipality. However, there are a number of strategies that an applicant can employ to stay ahead of the curve.

Background

In the case, the Property Owner wanted to remove two existing buildings and related improvements being used as gas service stations, consolidate the parcels, and construct a new Wawa convenience store with gasoline sales.

The Board of Supervisors denied the application for preliminary land development plan approval citing their noncompliance with multiple provisions of the Township’s Zoning Ordinance and SALDO. Property Owner appealed and the Trial Court found in favor of the Property Owner.

Prior to asking the Board to render a decision, the Property Owner requested the Township Zoning Officer to render a “determination” as to what zoning relief would be required under the Zoning Ordinance for the proposed redevelopment plan. In response, the zoning officer issued a letter replying to the request which was not published by the Property Owner as is permitted under the MPC.

After the Property Owner fully engineered the land development plans, the Township Solicitor issued a memorandum to the Planning Commission advising them that the Zoning Officer’s opinion in the Letter was erroneous and the preliminary plan would require zoning relief from the Township’s Zoning Hearing Board. The Board denied the preliminary plan application; thus, leading to the appeal to the Trial Court and then to the Commonwealth Court.

Appellate Ruling

On appeal, the Commonwealth Court reviewed the following issues:

• Whether the Board was bound by the interpretation of the Zoning Ordinance rendered by the Zoning Officer in the Zoning Letter. As to this issue, the Court found in favor of the Township, in part, due to the failure of the Property Owner to publish the determination.
• Whether Property Owner’s proposed development plan constituted an abandonment of a legally, nonconforming use (i.e., convenience store with gas sales.) As to this issue, the Court found in favor of the Property Owner.
• Whether the Trial Court erred or abused its discretion concluding that the Property Owner was not required to obtain the special exception for new occupancy (i.e., convenience store with gas sales). As to this issue, the Court found in favor of the Property Owner.
• Whether the Board appropriately rejected the preliminary plan due to noncompliance with the Zoning Ordinance and SALDO. As to this issue, the Court found in favor of the Property Owner.
• Whether the Trial Court erred or abused its discretion in finding bad faith by the Township. The Court found this issue as moot based on their holding in favor of the Property Owner as to the right to continue the nonconforming use.
• Whether the Trial Court erred or abused its discretion in considering and ruling upon Property Owner’s substantive challenge to the Zoning Ordinance, raised for the first time, to the Trial Court. As to this issue, the Court found in favor of the Township.

In summary, the Commonwealth Court concluded:

The Trial Court erred to the extent that it concluded that the Zoning Letter was binding on the Board and that the Property Owner’s reliance thereon was justified.

The Trial Court also erred to the extent that it made any findings or conclusions regarding whether the Zoning Ordinance was impermissibly exclusionary.

The Trial Court properly sustained the Property Owner’s land use appeal approving the preliminary plan and directing final plan approval condition of compliance with all pertinent SALDO requirements

As a result, the Commonwealth Court remanded the case back to the Trial Court for further proceedings based on its holdings.

For more information about this case, or how to best structure zoning and land use applications to obtain approvals for a contested project, please contact Rob Gundlach at 215.918.3636 or rgundlach@foxrothschild.com.