In Jaindl Land Company v. Greene Township, Appellant desired to construct a warehouse and related improvements on their 87-acre property which was zoned Light Industrial (LI) and Highway Commercial. At the time, the LI zoning district allowed warehouses and distribution centers as by-right uses. After meeting with representatives of the Township, Appellant learned that the Township was proposing to rezone the LI portion of their property to Transitional Commercial (TC) Zoning District. The TC zoning district did not allow warehouses and distribution centers as permitted uses. The Township sent notices to affected property owners as to the proposed rezoning and advertised the proposed rezoning in the local newspaper. On the day of the hearing, Appellant filed their preliminary land development application for the construction of an industrial warehouse on the property. The Board of Supervisors proceeded to adopt the rezoning and then rejected Appellant’s land development application based on the zoning officer’s determination that the application was subject to the pending ordinance doctrine, and thus, the newly enacted ordinance prohibiting the proposed warehouse use. Appellant appealed the Zoning Office’s determination to the Zoning Hearing Board who affirmed the Zoning Officer’s determination. The trial court also affirmed the Zoning Officer’s determination based upon the fact that the new ordinance was advertised before Appellant filed their preliminary land development application.

On appeal, the Commonwealth Court cited to Section 508(4)(i) of the Municipalities Planning Code (MPC) in reversing the trial court’s decision and holding that Appellant’s application was not subject to the pending ordinance doctrine. In their opinion, the Commonwealth Court discussed the history of the pending ordinance doctrine and its application to building permit applications that do not require subdivision or land development approval. The Commonwealth Court held that the legislature could not have been clearer in the passage of Section 508(4)(i) of the MPC stating that a preliminary land development plan may not be disapproved on the basis of a subsequently enacted zoning change.

Finally, in this case, the Commonwealth Court distinguished the prior holding in the Department of General Services case, dating back to 2002, that has led to confusion as to the pending ordinance doctrine in the context of subdivision and land development applications. The Commonwealth Court elected not to overrule their prior decision in General Services, but distinguished it to the point of “once and for all” resolving the ambiguity.

In summary, applicants can still file subdivision and land development applications prior to the effective date of an ordinance amendment that either rezones their property or proposes text amendments that would adversely impact their proposed use and development. In other words, applicants can still “beat the clock” when it comes to rezonings and text amendments in Pennsylvania.

For further information on the subject, please contact Rob Gundlach at 215.918.3636 or rgundlach@foxrothschild.com.