A Pennsylvania municipality cannot deny a landowner permission to build a warehouse because it advertised a new zoning map before a land development application was filed, the Pennsylvania Commonwealth Court ruled on October 27, 2022.

What You Need to Know:

• The Pending Ordinance Doctrine is not applicable to land development applications filed prior to adoption of an ordinance.
• The timing of the advertisement of the new ordinance has no bearing, provided that the land development application was file before ordinance adoption.

​Greene Township, located near Gettysburg, PA, wrongly denied a land development application on the basis that a zoning map amendment changing the classification of the property had previously been advertised. Developers are the equitable owners of an 87-acre property and proposed to develop the property as a warehouse, which was permitted by-right in the LI Light Industrial District. On December 13, 2018 and September 25, 2019, the Developers met with the Township Zoning Officer and Township Engineer to discuss the plans to develop the property as an industrial use. On March 12, 2019, the Township adopted a Comprehensive Plan, which did not recommend any zoning map changes for the property.

On October 22, 2019, the Township proposed a series of amendments which included rezoning a portion of the property from the LI District to the TC Transitional Commercial District, which did not permit a warehouse use. Notice of the proposed map amendments was mailed in November of 2019. A public hearing on the zoning map amendment was held on January 14, 2020 and the Developers submitted a preliminary land development application for the construction of the warehouse on the same day. On January 28, 2020, the Township Board of Supervisors adopted the zoning amendment, rezoning a portion of the property from the LI District to the TC District.

On February 5, 2020, the Township Zoning Officer issued a written determination that the Developers’ preliminary land development application was subject to the pending ordinance doctrine, and thus, subject to the newly enacted Ordinance, not the Prior Ordinance. The Zoning Officer subsequently denied the preliminary land development application because the warehouse was not permitted in the TC District.

The Developers appealed the Zoning Officer determination to the  Township Zoning Hearing Board, which affirmed the decision of the Zoning Officer.  The Developers subsequently filed a substantive validity challenge of the 2020 Ordinance arguing that the rezoning of the property was arbitrary, irrational, discriminatory, and constituted unlawful special legislation. The Zoning Hearing Board then denied the Developers’ substantive validity challenge. The Developers appealed both Zoning Hearing Board denials to the trial court, which issued an order and summary opinion denying both appeals.

On appeal to the Commonwealth Court, the Developers argued that the pending ordinance doctrine does not apply to land development application. Developers contend that section 508(4) of the Pennsylvania Municipalities Planning Code (“MPC”) governs their preliminary land development application, which must be reviewed under the ordinance in effect at the time they filed their application.

By way of legal background, prior to the adoption of the MPC, the pending ordinance doctrine permitted municipalities to deny applications for building permits if, at the time of the application, there was a pending ordinance amendment that would prohibit the use sought in the application.

The Commonwealth Court held that under the MPC, while a land development application is pending, no change or amendment of the zoning ordinance shall adversely affect such application and that the pending ordinance doctrine would directly contravene the protection afforded by the MPC. Moreover, the timing of the advertisement of the 2020 Ordinance had no bearing in the case, as the 2020 Ordinance was enacted after the Developers filed their preliminary land development application.