Three recent zoning cases decided by the Pennsylvania Commonwealth Court continue to hold that a municipality has a duty to exercise good faith and afford a developer a reasonable opportunity to respond when there was a misunderstanding or difference of opinion. These cases, all captioned as The Links at Gettysburg Land Company v. Mount Joy Township, serve as a reprimand to municipalities that are “quick on the trigger” to deny zoning and land use applications simply because they do not like the proposed project.

In these cases, Applicant obtained conditional use approvals for the expansion of a planned golf community and the erection of a hotel and conference center. As part of the conditional use approvals, Applicant accepted a condition that it update its traffic study within three years of the decision. Before the three year deadline, the Applicant’s traffic engineer issued a letter opining that since the development expansion associated with the conditional use approvals for the project has not yet been built and no other significant developments or traffic improvements have occurred, the traffic counts, assumptions, analyses and recommended improvements included in the prior traffic study remain valid and unchanged. At the end of the three-year period, the Board concluded that that conditional use approvals had expired and the applicant’s failure to update the information contained in the prior traffic study. At the same time, the Township also denied the revised preliminary subdivision plan for the expansion of the golf community and the preliminary land development plan for the hotel and conference center.

Applicant appealed all three decisions to the trial court who then, without taking any additional evidence, affirmed the Board’s decisions.

As to the decision to “void” the conditional use approvals, the Commonwealth Court held that it is well established that conditional use approval does not automatically expire for failure to satisfy a condition. In fact, the Court went on to hold that the enforcement of ordinance provisions, including the subject condition, is with the Township’s zoning officer, and in the subject case, the zoning officer took no enforcement action as to the Applicant’s alleged failure to satisfy the traffic study condition. Interestingly, as a footnote in this first case, the Court noted that the Township had a duty to exercise good faith. Accordingly, the Court reversed and remanded the case to the trial court with directions to remand to the Board for reinstatement of the conditional use approvals for expansion of the golf course community and erection of the hotel and conference center.

In the two companion cases, involving a decision to deny the subdivision plan and the land development plan, Applicant argued that the Board breached its “good faith obligation” to permit the Applicant to respond to outstanding comments before acting on the plans at issue. In support, the Applicant cited the case law standing for the proposition that the local governing body has a “duty to exercise good faith” in reviewing and processing land use applications and to provide the developer with a reasonable opportunity to respond to objections or to make modifications where there has been a misunderstanding or difference of opinion. In this case, the Court concluded that the Board abused discretion in denying the plan without affording the Applicant a further opportunity to address the comments. That is, the Board “jumped the gun” to reject the subject plans and found that the Board did not exercise “good faith” in its dealings with the Applicant. Accordingly, the Court reversed and remanded this matter to the trial court with directions to remand back to the Board in accordance with the foregoing opinion.

In summary, although municipalities still seem to “hold all the cards” when they want to deny an application for a project that they dislike, they continue to have a duty of good faith to work with an applicant. Sometimes that “good faith” is hard to see, but it is up to an applicant to “force their hand” in correspondence and at public meetings to obtain the cooperation required to address open comments and leave the municipality with no alternative other than to grant the requested plan approval.

For further information on these cases, or the ability to obtain zoning and approvals, please contact Rob Gundlach at 215.918.3636 or rgundlach@foxrothschild.com.