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Commonwealth Court Restricts the Pending Ordinance Doctrine

Municipalities often like to invoke the pending ordinance doctrine to stop certain unwanted development in its tracks. However, the Commonwealth Court recently limited municipalities’ ability to invoke this often-cited (but not always properly) rule. In Re: Appeal of Jaindl Land Company and RCSVP-Chambersburg, LLC[1], the Commonwealth Court sided with the Applicants and landowners in an action against Greene Township in Franklin County. This case focuses on the application of the Municipal Planning Code’s (“MPC”) exception to the pending ordinance doctrine which is carved out in §508 of the MPC[2].

In Jaindl, the Applicants presented an application for the construction of a warehouse in a district that permitted warehouses as of right. However, at the time of the application, the Township had proposed zoning amendments that would change the district and no longer allow warehouses as a permitted use. The amended zoning changes had not gone into effect yet; however they were advertised to the public.

The crux of the Township’s argument was that the pending ordinance must be applied because the proposed ordinance was properly advertised, and thus the public was aware of the anticipated changes. However, Commonwealth Court previously held that § 508(4) of the MPC “makes no mention whatsoever of public advertisement of proposed zoning changes or of the time of such advertisement vis-a-vis the time of filing an application.” Monumental Properties, Inc. v Board of Commissioners of Whitehall Township[3]. Furthermore, the Pennsylvania Supreme Court has held that “the pending ordinance rule does not apply to applications for subdivision or land development as they are controlled by § 508(4) of the MPC.” Therefore, the issue on appeal is whether the application was for a land development application.

The MPC defines a “land development” as:

(1) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving:

(i) a group of two or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; or

(ii) the division or allocation of land or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features.

(2) A subdivision of land.[4]

The Court held that the application was clearly a “land development” application as defined in the MPC. The Applicants were seeking to build a warehouse in a district that, at the time of the application was filed, permitted warehouses.

The Commonwealth Court found that the Applicants clearly presented a single preliminary land development application prior to the effective date of the proposed zoning ordinance. Therefore, § 508(4)(i) of the MPC applies and the Township could not deny the application under the pending ordinance doctrine. However, it is important to recognize that § 508(4)(i) only relates to “land development” applications.   Therefore, municipalities still may utilize the pending ordinance doctrine for zoning issues if properly invoked. Nonetheless, a municipality should seek legal advice prior to invoking such rule.


FOOTNOTES

1In re Jaindl Land Co., 776 C.D. 2021 (Pa. Cmmw. Ct. Oct. 27, 2022).

253 P.S. § 10508(4)(i).

3Monumental Properties, Inc. v Board of Commissioners of Whitehall Township, 311 A.2d 725, 727, 11 Pa. Commw. 105,110 (Pa. Cmmw. Ct. 1973).

453 P.S. §10107.

©2023 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XII, Number 306
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About this Author

Alan T. Shuckrow Shareholder Strassburger McKenna Gutnick & Gefsky
Shareholder

Alan T. Shuckrow has been an attorney at Strassburger McKenna Gutnick & Gefsky since 1997 and has been a Shareholder since 2003. From 2014-2019, he served as the firm’s President and Managing Shareholder. He currently serves on the Executive Committee as the firm’s Counsel. His experience ranges from municipal and education law to civil litigation and real estate. His clients include non-profit and for profit organizations and governmental entities.

Mr. Shuckrow’s education law practice includes a niche focus on representing charter schools...

412-281-5423
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