NAVIGATING LAND DEVELOPMENT AND ZONING REGULATIONS
August 29th, 2018
If you’re contemplating a commercial or industrial development project, you likely will have to navigate your way through complex legal regulations and ordinances. HKQ Law Attorney Richard Williams cautions that “it’s not just the laws that are complex. The entire approval process can be extremely challenging.” Having the guidance of an experienced attorney is invaluable.
Subdivision and Land Development
The Pennsylvania Municipalities Planning Code (MPC) provides municipalities with the authority to enact subdivision and land development ordinances (SALDO). Where a county enacts an ordinance, and a borough, city, township, town, or home rule municipality has not enacted an ordinance, the county ordinance will apply.
The subdivision and land development review and approval process generally begins with the submission of a set of preliminary land development or subdivision plans. This is typically the most expensive and time-consuming phase of the process as it can involve numerous ordinances, many of which have become more and more complex over the years.
As provided in the MPC, a municipality has 90 days to review the plan to determine if it satisfies the requirements of the ordinance. The plan is deemed approved if the municipality does not render a decision within 90 days. (Because the process typically takes longer, applicants have the option of extending the review period. However, they should never agree to an indefinite extension.) Typically, once the municipality has prepared review letters with comments, the applicant reviews the comments and submits a revised plan which addresses the municipality’s concerns.
Once the preliminary plan has been approved, the applicant prepares and submits a Final Plan, which largely follows the preliminary plan process. At this point in time, the applicant is typically working concurrently with outside agencies, such as the Pennsylvania Department of Environmental Protection, the Pennsylvania Department of Transportation, and other third parties in order to obtain needed permits and approvals. Upon final approval, the applicant needs to record the final plan with the local Recorder of Deeds within 90 days. An appeal can be filed in a Court of Common Pleas within 30 days of the decision if the application is denied.
Sometimes, a subdivision and land development ordinance causes hardship or proves unreasonable. Sections 503(8) and 512.1 of the MPC provide for relief from the strict application of a requirement in the form of a modification or waiver. Although all are requests for relief, a modification or waiver must not be confused with relief granted by a variance from the requirements of a zoning ordinance.
Under MPC, municipalities are authorized to enact, amend and repeal zoning ordinances. However, a municipality is not required to enact a zoning ordinance.
Zoning ordinances “should reflect the policy goals of the statement of community development objectives, and give consideration to the character of the municipality, the needs of the citizens and the suitabilities and special nature of particular parts of the municipality.” However, the courts consistently have held that, where there is a conflict between the municipality’s comprehensive plan and a zoning ordinance, the latter prevails as it is regulatory in nature whereas the comprehensive plan is merely recommendatory.
A zoning ordinance may permit, prohibit, regulate, restrict and determine, to the extent not superseded or preempted by certain state or federal acts:
- Uses of land, watercourses and other bodies of water
- Size, height, bulk, location, erection, construction, repair, maintenance, alteration, razing, removal and use of structures.
- Areas and dimensions of land and bodies of water to be occupied by uses and structures, as well as areas, courts, yards, and other open spaces and distances to be left unoccupied by uses and structures
- Density of population and intensity of use
- Protection and preservation of natural and historic resources and prime agricultural land and activities
- In addition to provisions regulating the siting, density and design of residential, commercial, industrial and other developments, a zoning ordinance may also contain provisions for special exceptions, variances, conditional uses, transferable development rights; provisions encouraging innovation; provisions for sewer and water supplies; and provisions for administration, implementation and enforcement of the ordinance.
An aggreived landowner may appeal a zoning hearing board’s adverse decision to the Court of Common Pleas. Typically, however, a board’s decision will be reversed only when it is determined that it committed an abuse of discretion or otherwise erred as a matter of law.
Navigating regulations and ordinances and working through the governmental approval process can be very complex tasks. HKQ Law can assist developers through the entire land development/ zoning process – from application to appeal. To speak with a real estate zoning and land use attorney, call HKQ Law’s Commercial Team at (800) 760-1529.