A recent Commonwealth Court decision provides important lessons about the challenges developers face when seeking a waiver from provisions of a municipality’s subdivision and land development ordinance (SALDO).
In M&D Properties, Inc. v. Bd. of Comm. of the Twp. of Upper St. Clair, the Court analyzed whether an applicant was entitled to certain waivers for a development that was mired with a history of failures, all apparently due to the property having challenging characteristics – including wetlands, a bisecting stream and steep grading – which inhibited efficient or practical development.
Background
In 1989, M&D acquired certain vacant property in Upper Saint Clair Township with an intent to subdivide and develop it into separate residential dwellings. In 2005, M&D filed an application with the Township requesting approval of a plan for a six-lot development, but the Township’s Board of Commissioners only approved a four-lot development, which M&D did not pursue due to alleged issues associated with the Property’s topography.
Then, in May 2020, M&D filed an application seeking to consolidate the Property with an adjacent lot M&D recently purchased, on which a single-family residence was situated. From this, M&D submitted a land development application proposing to create two new lots – one with the existing residence, and one that would be approximately 10 acres in size on which a new single-family residence would be constructed. M&D proposed that the lot with the proposed new dwelling would be a flag lot because access from any other point that that proposed by M&D would not be feasible, in M&D’s opinion.
In connection with this application, M&D requested three different waivers from the SALDO. During the review process for the land development application, M&D presented evidence of the challenging site characteristics (i.e. significant wetlands, a steam bisecting portions of the Property, steep grading). M&D argued that these site characteristics made it difficult if not impossible to comply with all of the applicable requirements of the SALDO such that the waivers should be granted.
At issue was, in part, Section 512.1(a) of the MPC which provides provisions with respect to the granting of waivers, and states: “The governing body or the planning agency, if authorized to approve applications within the [SALDO], may grant a modification of the requirements of one or more provisions if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose of the ordinance is observed.” The Township’s SALDO had similar terms, but also provided that: “When, owing to special conditions, a literal enforcement of this chapter would result in unnecessary hardship, the Board . . . may make such reasonable exceptions thereto as will not be contrary to the public interest . . . ”
Also applicable was Section 512.1(b) of the MPC which states that requests for waivers “shall state in full the grounds and facts of unreasonableness or hardship on which the request is based, the provision or provisions of the ordinance involved and the minimum modification necessary.”
Board Proceedings
Pertinent to M&D’s waiver request, the Board evaluated M&D’s hardship request only on the basis that there was a “hardship,” and did so because M&D’s written waiver request, and presentation on its land development application focused solely on “hardship,” not “unreasonableness.”
Ultimately, the Board denied the application on the basis that M&D “failed to show by reason of exceptional topographic or other physical conditions that strict compliance with the SALDO would cause practical difficulty or exceptional and undue hardship.” The Board did not evaluate the request on “unreasonableness” grounds.
M&D appealed the Board’s denial to the court of common pleas which affirmed the Board’s decision, and M&D then appealed to the Commonwealth Court.
Commonwealth Court Analysis
In reviewing the mandates of Section 512.1(b), the Commonwealth Court highlighted that the ordinance requirement which an applicant seeking a waiver and/or modification of the terms of the SALDO must establish either unreasonableness or hardship, and that a waiver could be granted on either basis. However, the Commonwealth Court observed that M&D’s waiver request (as per its written waiver request and as verbally reiterated before the Board) was only on the basis that there was a “hardship,” and did not include an “unreasonableness” argument. Thus, the Commonwealth Court held that the Board did not abuse its discretion in evaluating M&D’s waiver requests solely on the grounds of “hardship.”
Turning to the merits, the Commonwealth Court affirmed the decisions of the Board and the court of common pleas. In doing so, the Commonwealth Court highlighted that the Board was justified in finding that M&D failed to provide sufficient details and facts supporting its underlying argument that there was a hardship justifying the waivers. The Commonwealth Court noted that M&D’s failure to “check every box” for its hardship argument caused M&D’s “witnesses” to lack credibility. As a result, according to the Commonwealth Court, the Board was justified in denying M&D’s waiver requests.
Key Takeaways
This case provides multiple lessons. First, waivers in connection with land development applications must be supported by the facts and circumstances of each case, and cannot be taken for granted, which occurs far too often.
Second, arguments with respect to justification of waivers and other issues in a land development application should be raised as soon as possible so as to avoid any waiver. This includes ensuring that arguments for waivers are rooted in “hardship” arguments, and “unreasonableness” arguments.
Third, and similarly, when a situation calls for the presentation of multiple arguments, it is important that a party assert all arguments it may have to avoid waiver of same.
Lastly, and most importantly, applicants should engage legal counsel for guidance in the land development process. Even when a project seems “straightforward,” issues arise, and it may be too late to address those issues with legal counsel at that time.
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