In this appeal from the denial of a mandatory sketch plan, the Commonwealth Court was asked to determine whether § 917 of the Municipalities Planning Code (“MPC”) imposes an absolute 6-month deadline for acting upon a special exception approval to prevent subsequently adopted ordinance amendments from becoming applicable to the underlying project. In reversing the decision of the Court of Common Pleas of Montgomery County, the Commonwealth Court found that the 6-month deadline was not absolute and could be extended by a municipality in its zoning ordinance.
1050 Ashbourne Associates (“Developer”) owns a property in the R-4 and Age-Restricted Overlay (“ARO”) districts of Cheltenham Township. Developer applied for a special exception from the Township Zoning Hearing Board (“ZHB”) to construct 3 apartment buildings with 24 units in two buildings, and 31 units in the third. The buildings would each be 4 stories tall and tailored toward residents age 55 and older. While the application was pending, the Township amended the height restriction in its ARO district to 3 stories. Notwithstanding this amendment, the ZHB granted the special exception, which the trial court affirmed. Thereafter, the Township notified Developer that its project would also have to comply with the Township’s Preservation Overlay (“PO”) district regulations, which only permitted 8 units per structure. Nine months after receiving the special exception, Developer submitted a mandatory sketch plan to the Township. The Township Board of Commissioners disapproved the sketch plan as having too many units per structure, and for exceeding the 3-story height restriction. Developer appealed. The trial court rejected the disapproval based on too many units, but upheld disapproval based on the new height restriction. The trial court found that § 917 of the MCP required land development plans to be filed within 6 months of receiving special exception approval to be protected from subsequently adopted ordinance amendments. As Developer had waited 9 months to file a sketch plan, the protection afforded by § 917 had lapsed, and the new height restriction applied. Developer appealed.
On appeal, the Commonwealth Court affirmed in part and reversed in part. The Court affirmed the trial court’s conclusion that the PO district regulations were inapplicable. Specifically the Court cited express language in the Zoning Ordinance stating that ARO regulations superseded any of its other regulations. Although the ARO regulations were silent as to units per structure, the Court interpreted this silence as superseding the PO district regulations, and concluded Developer could construct as many units per structure as was structurally feasible. As for the new height restriction, the Court reversed, finding the 6-month time limitation in § 917 only applied if the municipality’s governing ordinances did not provide for a longer period. Here the Zoning Ordinance gave successful applicants 2 years to implement their special exceptions unless otherwise specified by the Board. As a sketch plan was filed within 2 years, the project was still protected from ordinance amendments. Lastly, the Court dismissed Developer’s bad faith claims related to the Township disapproving the sketch plan based on issues not raised during the special exception proceedings. The Court found that the facts of this case did not approach those presented in other bad faith cases.