John VanLuvanee and Kellie McGowan successful before the Commonwealth Court

In an opinion and order issued July 24, 2009, the Commonwealth Court affirmed an opinion and order of the Bucks County Court of Common Pleas reversing granting the appeal of Heritage Building Group. Mr. VanLuvanee successfully argued to the lower court and the Commonwealth Court that the Plumstead Township zoning officer had improperly determined that Heritage was required to obtain zoning permits to place four-year fill piles on a parcel of property in furtherance of a pending land development plan.

 

Heritage Building Group had filed a revised subdivision plan with Plumstead Township, Bucks County seeking approval to subdivide Tollgate Farm into lots on which single-family homes could be constructed. The plan proposed on-lot sewage disposal systems that would be permitted utilizing the 4-year fill process because the soils were otherwise unsuitable for on-lot systems. Plumstead Township refused to allow Heritage to place the fill piles on the proposed lots without obtaining zoning permits. Heritage appealed to the zoning hearing board arguing that the zoning ordinance provisions requiring zoning permits had been enacted after Heritage had filed its preliminary plan and that the section 508(4)(i) of the Municipalities Planning Code protected Heritage’s rights to proceed without zoning permits under the zoning ordinance in effect when the preliminary plan was filed. The zoning hearing board affirmed the zoning officer’s decision. On appeal to the Bucks County Court of Common Pleas, the court sustained Heritage’s appeal. The Township appealed to the Commonwealth Court.

 

The Commonwealth Court affirmed the lower court’s determination that Section 508(4) of the Municipalities Planning Code precludes application of a subsequently-enacted zoning ordinance amendment to a pending land development plan. The court agreed with Heritage that the placement of the fill piles was in furtherance of the pending preliminary plan and that application of after-enacted zoning ordinance amendments, including the requirement for zoning permits for the fill piles, had the potential to "affect the decision on the [pending plan] adversely to the applicant". The Commonwealth Court further held that the placement of fill piles on a property does not constitute an "improvement" on the property.

 

The Commonwealth Court opinion is significant because it established that Section 508(4) of the MPC provides protection to all aspects of the pending preliminary plan, and precludes application of adverse amendments to zoning permit applications filed thereunder. The Court further provided important guidance on what constitutes an "improvement" to property.