In this case, the Commonwealth Court had to decide whether a board of supervisors was wrong to consider and approve a land development plan prior to the developer obtaining zoning relief. Because the municipality’s subdivision and land development ordinance (“SALDO”) did not require that a land development applicant obtain zoning relief first, the board of supervisors did not err by considering and approving the land development plans.
The Hill at Whitemarsh (the “Developer”) filed a land development application with Whitemarsh Township Board of Supervisors (the “Township”). It sought final approval for a preliminary and final land plan. The Township approved the application.
The application described an access road that construction vehicles would use to access the subject property during construction. The Developer had obtained a construction easement across the adjoining property from the owner of that property, Whitemarsh Foundation. The easement was given in exchange for an easement across the Developer’s property for a “trail corridor.” Several neighboring property owners (the “Objectors”) were unhappy with the location of the access road, which was as close as thirty-five (35) feet to some properties.
The Objectors filed a land use appeal. They argued that the Township erred by approving the land development plan because the Developer failed to first obtain a zoning permit prior to submitting its application. Specifically, the Objectors argued that the Developer needed a zoning permit for the temporary access road, which they argued was a use not permitted in the relevant zoning district. The trial court first held that the Objectors failed to raise this issue before the Board of Supervisors, so it was waived. However, the court went on to address the merits and stated that, because the Township’s SALDO does not require a developer to obtain a zoning relief prior to the Township’s consideration of a land development application, the Township did not err in approving the plans.
On appeal to the Commonwealth Court the Objectors again argued that zoning approval is required before a board of supervisors can consider a land development plan. The court held that the situation is governed by a municipality’s SALDO. In this case, the Township’s SALDO was silent as to the relevant timing of plan approval and obtaining necessary zoning relief. All it requires is that the Township’s zoning officer receive plans and provide recommendations. It does not provide, as the Objectors maintained, a mandate that a developer receive a zoning relief before a board of supervisors can consider a land development plan.
Click here to read: Dambman v. Bd. of Sup’rs of Whitemarsh Twp., No. 1883 C.D. 2016 (Oct. 6, 2017).
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