MetroDev V, LP (“Landowner”) owns property (the “Property”) in an area where the boundary lines of the Township of Exeter (the “Township”), and two surrounding municipalities meet. Prior to July 25, 2005, the Property was zoned low density residential; however, on July 25, 2005 the Township rezoned the Property to suburban residential. The changed classification reduced the number of permitted residential lots from 30 to 7. In August 2005, Landowner filed a validity challenge of the new ordinance with the Township’s Zoning Hearing Board (“ZHB”) alleging procedural irregularities in its adoption. In September 2005, Landowners filed a preliminary subdivision plan for a residential development comprising 34 residential lots, 26 of which were located in the Township. The plan was based on a sketch plan that had previously been submitted under the old ordinance. Certain waivers were sought from the Township’s Subdivision and Land Development Ordinance (“SALDO”). On September 26, 2005, the Township and Landowner entered into a settlement agreement whereby Landowner withdrew its procedural validity challenge in exchange for the Township agreeing to review and potentially approve the land development plan under the terms of the old zoning ordinance. In July 2008, the Township approved Landowner’s plan, subject to certain conditions. Pursuant to the settlement agreement, the Township had reviewed the plan under the old ordinance. Adjacent property owners (“Objectors”) filed a land use appeal with the Court of Common Pleas of Berks County, which was dismissed for lack of standing because Objectors had not appeared in the earlier proceedings.

farm Feield cultivated

On appeal, the Commonwealth Court reversed and remanded, finding Objectors had substantive standing to approve the land development approval (Miravich I). On remand, the trial court denied Objectors’ land use appeal, determining the Township was legally authorized to settle challenges to zoning ordinances. Objectors appealed and the Commonwealth Court held the Township lacked the authority to determine which zoning ordinance applied to the plan, because (1) Landowner’s procedural challenge was within the exclusive jurisdiction of the ZHB, (2) Landowner filed its challenge with the ZHB, and (3) even if filed with the Township, the Township had violated the MPC’s notice and hearing requirements. The Court also held the settlement agreement was invalid, and determined it was akin to illegal contract zoning (Miravich II). Both parties filed petitions for allowance of appeal to the Supreme Court, which were ultimately denied.

While the petitions were pending, Landowner sent a letter to the ZHB requesting it conduct a hearing on the procedural validity challenge filed in 2005. The ZHB held a hearing and concluded it had nothing to consider because Landowner had unconditionally withdrawn its challenge in October 2005. Landowner appealed to the trial court, and the trial court remanded to the ZHB for a determination on the merits. This decision was affirmed by the Commonwealth Court. The ZHB held hearings on the procedural validity challenge, and ultimately sustained the challenge, declaring the ordinance void ab initio. The ZHB found 11 procedural deficiencies in the enactment of the ordinance. Objectors appealed to the trial court, which affirmed, and Objectors appealed to the Commonwealth Court.

On appeal, the Commonwealth Court affirmed the trial court’s affirmation of the ZHB’s decision. The court disregarded Objectors’ argument that Landowner was not prejudiced by its purported lack of knowledge, holding that Landowner only had to prove the Township failed to strictly comply with the required procedures set forth in the MPC, not that it was actually prejudiced by those procedural irregularities.

Click here to read: Davis-Haas v. Exeter Twp. ZHB, 1739 CD 2016 (Pa. Commw. Ct. Jul. 12, 2017).

Edited by:

Sivertsen_BLOGZac Sivertsen