The Legal Intelligencer
On Jan. 13, the Commonwealth Court rendered a decision in Honey Brook Estates v. Board of Supervisors of Honey Brook Township, 2016 Pa. Commw. LEXIS 52 (Pa. Commw. Ct. 2016), that reaffirmed a municipality’s obligation to act in good faith when processing subdivision and land development plans. The Commonwealth Court originally articulated the elements of this obligation in Raum v. Board of Supervisors, 370 A.2d 777 (Pa. Commw. Ct. 1977).
In Raum, a landowner submitted a subdivision plan for review and approval approximately 80 days before the township was scheduled to act on a proposed rezoning of the landowner’s property. Upon receipt of the landowner’s plan, the township did nothing but attempt to derail the landowner’s approval. Specifically, the township waited until the last possible moment (i.e., two days before enacting the proposed rezoning) to raise objections to the plans, then claimed there was insufficient time to consider modifications made in response to the township’s objections. Finding the township had a “deliberate, pervasive plan and intent to thwart” the landowner’s development and thus acted in bad faith, the Commonwealth Court ruled that the landowner was entitled to plan approval. In reaching this conclusion, the court stated: “A municipality has a legal obligation to proceed in good faith in reviewing and processing development plans. The duty of good faith includes discussing matters involving technical requirements or ordinance interpretation with an applicant, and providing an applicant a reasonable opportunity to respond to objections or to modify plans where there has been a misunderstanding or difference.”
Nearly 40 years later, in Honey Brook Estates, the court revisited the parameters of a municipality’s obligation to review development plans in good faith. There, a landowner purchased property in Honey Brook Township with the intent of constructing a 78-unit residential development. However, approximately five months after purchasing the property the landowner learned that the township planned to rezone, among other things, its property from residential to agricultural. In order to vest its right to use its property for residential purposes, the landowner quickly submitted preliminary subdivision and land development plans to the township, which rejected the plans as incomplete. In doing so, the township engineer noted five deficiencies in the plans. The landowner remedied these deficiencies and resubmitted amended plans to the township a few days before the proposed rezoning was enacted. The township manager again rejected the amended plans as incomplete, noting, for the first time, that the landowner failed to submit a sewage planning module, a certification of sewer and water facilities, and a traffic study. The township manager also informed the landowner that because the plans were deemed incomplete, the plans would not be forwarded to the planning commission for review and comment.
The landowner objected to the township’s decision and requested reconsideration, arguing the township was imposing requirements on it that had never been imposed on a preliminary plan applicant. The township, upon advice from its solicitor, who agreed that the township “has [previously] been far less technical in its objections to completeness of plans,” decided, unbeknown to the landowner, to forward the plans to the planning commission. In its cover letter to the planning commission, the township: (1) listed 93 critical comments on the merits of the plans; (2) disclosed that it believed the plans were incomplete; (3) noted that the commission’s review would not invalidate the earlier finding that the plans were substantially incomplete and should be rejected; and (4) explained the plans were only being forwarded for review and comment out of an abundance of caution. The planning commission, after noting the absence of the landowner, voted to recommend disapproval of the amended plans.
Unaware that the planning commission had reviewed and recommended disapproval of the plans, the landowner submitted to the township supplemental documentation related to its sewage planning module, certification of sewer and water facilities and traffic study. Since the planning commission had already recommended disapproval of the plans, the township returned the supplemental documentation. The township board of supervisors then rejected the landowner’s amended plans, citing 59 reasons for its decision. Neither the planning commission nor the board of supervisors reviewed the landowner’s supplemental documentation.
Asserting that bad faith and irregularities in the township’s review deprived it of the opportunity to have its plans reviewed objectively on the merits, the landowner appealed the board of supervisors’ decision. On appeal, the trial court granted the parties permission to present evidence on the township’s alleged bad faith. Part of the evidence presented consisted of depositions from the township engineer and the township manager. The township engineer testified that the township was concerned that developers, after learning of the proposed rezoning, would rush to beat its enactment and file preliminary development plans haphazardly. In reaction to this concern, the township revised its plan review policy to prohibit incomplete preliminary plans from entering the township’s review cycle.
The township engineer further testified that the township did not advise the public of this policy change. In addition, the township manager testified that prior to the implementation of the township’s new review policy, he could not recall a single instance where a preliminary plan was not submitted to the planning commission as a matter of course or a landowner was not present during a meeting at which the planning commission considered its plans.
Finding the landowner’s allegation of bad faith lacked merit, the trial court affirmed the board of supervisors’ decision. The landowner appealed to the Commonwealth Court, which reversed. In doing so, the court reiterated the Raum principle that a municipality is obligated to act in good faith when processing subdivision and land development plans.
Analyzing the township’s actions under the Raum standard, the Commonwealth Court found that the township acted in bad faith when it: (1) continued to find new reasons to object to the plans after the landowner revised the same in response to township comments; (2) denied the landowner the opportunity to present supplemental documentation to the planning commission and board of supervisors; (3) told the landowner the plans would not enter the township’s review cycle, then did an about-face and sent the plans to the planning commission for review and comment without notifying the landowner; and (4) offered the planning commission volumes of additional materials and new reasons why the landowner’s plans should be denied. The Commonwealth Court remanded the matter back to the township board of supervisors with instructions that it review the landowner’s plans under the zoning ordinance in existence at the time the plans were submitted, provide input on technical requirements and ordinance interpretation, identify objections to and deficiencies in the plans, and provide the landowner the opportunity to respond to the same.
The Commonwealth Court’s decision in Honey Brook Estate is an important reminder to municipalities that they must review and consider land-use applications in good faith. Local land-use officials cannot use the process to thwart development plans, and indeed they have an affirmative obligation to work with applicants to identify ordinance requirements and give them a reasonable opportunity to respond to objections.
Blaine A. Lucas is a shareholder, and Alyssa E. Golfieri an associate, in the public sector services and energy and natural resources groups of the Pittsburgh law firm of Babst, Calland, Clements and Zomnir. Lucas coordinates the firm’s representation of energy clients on land use and other local regulatory matters. He also teaches land use law at the University of Pittsburgh School of Law. Golfieri focuses her practice on zoning, subdivision, land development, code enforcement and public bidding matters.
*Reprinted with permission from the 4/24/16 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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