What Comes First, Zoning Approval or SALDO Approval?
The Commonwealth Court issued an opinion in the case of In re: Appeal of Smith and Whetstone from the Decision of the Zoning Hearing Board of West Chester Borough, 1715 C.D. 2018, 1725 C.D. 2018 addressing this issue.
The Court began by looking at the difference between the land development approval and zoning approval. These are considered dual tracks and the issue becomes whether zoning approval is required before a land development application can be approved. The answer to this question is determined by the applicable subdivision and land development ordinance. At the time that the Plan in the case was approved, the SALDO provided that no “subdivision or land development shall be approved which would result in lots or land use which would in any way be inconsistent with” the Zoning Ordinance. Therefore, any zoning approvals were to be resolved prior to the approval of the subdivision or land development plan.
Neighbors argued that a future addition approved as part of a land development is inconsistent with the Zoning Ordinance and is not permitted in the applicable zoning district. The Court held those issues had to be resolved before the Plan was approved. The Plan showed the Future Addition and contained no conditions requiring the owner to obtain any zoning approvals. In addition, the details on the Plans make it clear that the Future Addition is part of what was approved and that the use of the buildings was for professional offices. If the use was not permitted, the Borough should have denied the Plans or made it a condition of approval that zoning relief be obtained. If the approval of the Plans was wrong, an appeal should have been taken from that approval.
The neighbors also argued that allowing a building permit to be issued based on the prior approved Plans would effectively allow the governing body to waive zoning requirements if it granted SALDO approval before zoning approvals were obtained. The Court disagreed stating that it would not “presume that governing bodies will act beyond their authority and improperly waive zoning requirements.” If an individual believes that a governing body has improperly waived zoning requirements it has the right to appeal that action, in this case the approval of the Plan. Therefore, the building permit was properly issued.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.
