Local Regulation of Subdivision and

Land Development in Pennsylvania

Prepared and presented by Joshua D. Bonn, Esq.

Nauman, Smith, Shissler & Hall, LLP

Camp Hill Borough Council

Special Meeting May 8, 2018

Governing Laws and Regulations

• Municipalities Planning Code (MPC) – State law that governs land development

approval process

• Subdivision and Land Development Ordinance (SALDO) – Local ordinance

establishing basic land development regulations

• Zoning Code – Local ordinance that controls use of land and defines zones where

certain uses are permitted or not permitted

• Comprehensive Plans – County and Borough blueprints for land use and growth

management

Purposes of SALDO

• Provide adequate sites for development and public use

• Maintain reasonable and acceptable design standards

• Establish standards for improvements and construction

• Coordinate public improvements with private development interests

• Establish uniform procedures for processing applications

Subdivision & Land

Development Approval Process

• Application

• Determination of technical compliance with SALDO by

Borough staff with assistance of Borough Engineer

• Review and recommendation by Planning Commission

• Action by Borough Council

Authority

(Established by SALDO per MPC)

• Planning Commission reviews applications and makes non-binding recommendations to Council

• Council has authority to approve or disapprove subdivision and land development applications

Council acts in an adjudicative rather than legislative role

This means that Council must be objective and unbiased—it merely determines if plan complies with SALDO

Council may impose conditions to ensure compliance

Legal Protections for Developer

(Provided by MPC and Case Precedent)

• “If the plan submitted by the applicant complies with all of the objective

provisions of the applicable [SALDO] as well as all other applicable

regulations, the plan must be approved by the reviewing

body.” Delchester Developers, L.P. v. London Grove Twp. Bd. of

Supervisors, 161 A.3d 1106, 1108 (Pa. Cmwlth. 2017)

• Once filed, application may not be adversely affected by any newly

enacted or amended ordinance

Legal Protections for Developer Cont.

(Provided by MPC and Case Precedent)

• Nonconforming use – Camp Hill Zoning Code provides “repairs,

routine maintenance and/or structural alterations not

constituting an extension, expansion, or enlargement may be

made to a non-conforming use or structure […] provided such

repairs, maintenance and/or structural alterations do no change

the use or exterior dimensions of the structure, building or use”

90-Day Timeline

(Governed by MPC)

• Council must render written decision on application no later than 90 days

following the date of the first meeting of the Planning Commission after

the date the application is filed

• Deemed Approval – If decision is not rendered within 90-day timeframe,

application will be “deemed approved” without conditions (written

decision may be issued 15 days thereafter)

• Developer may agree to extend 90-day timeline

Traffic Study

(Required by Zoning Code)

1. Abbreviated Traffic Impact Study

• Required if proposed development will generate 50 to 99 new vehicle

trips in the peak direction during peak traffic hour

• Purpose of abbreviated traffic study is to ensure safe and efficient

access to development (only includes capacity analysis report for

proposed site access intersections)

Traffic Study Cont.

(Required by Zoning Code)

2. Comprehensive Traffic Impact Study

• required if proposed development will generate 100 or more new vehicle trips orgenerates Average Daily Traffic (ADT) of greater than 3000

• council may require comprehensive traffic impact study if: (a) current traffic problems exist in the local area, or (b) the ability of the existing roadway to handle increased traffic is limited

3. Applicant is responsible for construction, at its own expense, of “on-site” transportation related improvements required to provide safe and convenient ingress and egress to development

Transportation Impact Fees

• MPC expressly prohibits municipality from imposing a requirement for construction of

“off-site” road improvements or payment of fees in lieu of construction of “off-site” road

improvements, except where municipality has properly enacted a transportation impact fee

• To impose transportation impact fee, municipality must establish impact fee advisory

committee, designate transportation service areas, and conduct series of studies consisting

of land use assumption report, roadway sufficiency analysis and transportation capital

improvements plan

• Transportation Impact Fees can deter development by raising developer costs and the

underlying studies are expensive (in excess of $100,000) and time consuming (two years)

Financial Guarantees for Construction

of Public Improvements

• Municipality may not approve final plan unless required public

improvements are completed or completion is assured by financial

security (cash, performance bond, letter of credit, etc.) provided by the

developer

• Amount of financial security required is 110 percent of estimated cost

• Developer submits cost estimate, which is reviewed by municipal

engineer and subject to approval by Council

Negotiations with Developer

• Borough and Developer may engage in negotiations regarding conditions such as

financial guarantees and improvements

• Council may receive privileged legal advice from Solicitor in writing or during executive

session

Public disclosure of legal advice may reveal strategy and otherwise put Borough at

disadvantage in negotiations with Developer

Public disclosure of legal advice also waives privilege and may subject Borough to bad

faith claim

• Developer Agreement - Developer is bound by any condition it willingly accepts even

when condition is not required by SALDO

Action by Borough Council

• Approval - A plan that meets the requirements of the SALDO is entitled to approval

• Approval w/ Conditions - Council may approve the application subject to conditions based

on the SALDO, Zoning Ordinance, state law, or Developer Agreement

Plan requiring access to state highway must be subject to condition that

Developer obtain highway occupancy permit (may not be denied on this basis)

Municipality may not condition approval on developer meeting a standard not

contained in the ordinance and which Developer rejects

Third party approvals are frequently the basis for conditional plan approval and

not for denial (e.g., Highway Occupancy Permit, NPDES Permit, erosion and

sedimentation controls, and the like. See Delchester, supra.)

Action by Borough Council Cont.

• Denial - Must specify defects, describe requirements that have not

yet been met, and cite sections of SALDO relied upon

Duty of Good Faith – May not base conditions or denial

on pretextual reasons

Curable Defects – Plan may not be denied where technical

defects may be cured

Litigation

• Developer may challenge denial of plan or conditions

assigned to plan in court of common pleas

• Municipality may bring litigation to enforce

compliance with SALDO and approved plan

Joshua D. Bonn, Esquire

Nauman, Smith, Shissler & Hall, LLP

200 N. 3rd Street, 18th Floor

Harrisburg, PA 17101

(717) 236-3010 ext. 29

E-mail: jbonn@nssh.com