CLIENT UPDATE: WAIVERS FROM SUBDIVISION ORDINANCE NOT SO SIMPLE ANYMORE

The Pennsylvania Commonwealth Court has put property owners and developers on notice that waivers from municipal subdivision and land development ordinance requirements should not be taken for granted.  In the recent case of Lake MacLeod Homeowners Association v. Pine Township Board of Supervisors, the Court held that the Township was wrong in granting waivers from its subdivision and land development ordinance since the developer had not proven “undue hardship” as the basis for the waivers.  This standard is very similar to the standard which developers and property owners need to prove in requesting variance relief from zoning ordinance requirements. It had commonly been thought by both developers and municipalities that the subdivision waiver standard was less stringent than that needed for a variance, however, this recent Court decision seems to cast doubt on that assumption.

In the Lake MacLeod case, the developer sought to reduce the required street right of way from 50 feet to 30 feet and to allow for the placement of more than three homes on a private street. The Township granted the waivers citing among other things “a better aesthetic plan; flexible site design; efficiency of the use of available spaces; limitation of site disturbance and the promotion of a walkable, sidewalk enhanced community”.  The Court held that the reasons given by the Township to justify the waivers had nothing to do with “undue hardship” based on the peculiar physical conditions of the subject property and thus, the grant of waiver relief was improper.

Frequently, developers seek waivers from subdivision and land development ordinances arguing that the waivers would result in “a better plan”, a “lesser impact on abutting properties”, or allow for a comparable [but more cost effective] way of constructing a particular improvement. All of these justifications under the Lake MacLeod decision would now seem to be suspect as a sustainable basis for the grant of waiver relief.

Of course, there are instances where waiver relief is indeed appropriate and warranted but these discussions should now take on a heightened level of scrutiny when development plans are being engineered for municipal consideration.

To discuss this case further, please do not hesitate to contact myself at Lou@rrhc.com or any of our land use attorneys at 610-458-4400.

 

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