The pending ordinance doctrine is often referenced in the context of zoning amendments that are made in the face of controversial development plans. However, the legal protections provided by the doctrine are often misunderstood and overstated. This article focuses on what you need to know when seeking to utilize the protections and benefits of the pending ordinance doctrine.
The Commonwealth Court has previously explained the pending ordinance doctrine as follows:
Under the 'pending zoning ordinance doctrine,' a building permit may be refused if at the time of application there is pending an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought. Boron Oil Co. v. Kimple, 445 Pa. 327, 329, 284 A.2d 744, 746 (1971). An ordinance will be considered pending when a governing body has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on such rezoning. Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 226, 328 A.2d 464, 467 [(1974)]; Boron Oil Co., 445 Pa. at 331, 284 A.2d at 747. A permit may be refused only in situations where the municipality acts initially in good faith to achieve permissible ends and thereafter proceeds with reasonable dispatch in considering the proposed rezoning. Id. at 333, 284 A.2d at 748; Borough of Brookhaven v. Park, 47 Pa. Commonwealth Ct. 223, 228, 408 A.2d 176, 178 (1979).
Board of Supervisors of Greene Township v. Kuhl, 536 A.2d 836, 840 (Pa. Commw. Ct. 1988) (citing Marinari v. Zoning Hearing Board of New Hanover Township, 496 A.2d 121, 123-24 (Pa. Commw. Ct. 1985)).
Thus, application of the pending ordinance doctrine to deny a permit or application requires four elements to be present. First, a zoning ordinance amendment must be “pending” at the time the applicant submits its application. In order to be pending, a governing body must have resolved to consider a particular scheme of rezoning, and it must have advertised to the public its intent to hold public hearings concerning the ordinance. Board of Supervisors of Greene Township v. Kuhl, 536 A.2d 836, 840 (Pa. Commw. Ct. 1988). In determining whether a governing body has “resolved to consider a particular zoning scheme,” the court should consider “the number of changes [to the ordinance] and their degree.” Board of Supervisors of Greene Township v. Kuhl, 536 A.2d 836, 841 (Pa. Commw. Ct. 1988).
Second, the proposed zoning ordinance amendment must prohibit the use of the land for which the permit is sought. Id. Third, the municipality must act in good faith to achieve permissible ends. Id.
The fourth element requires that the municipality proceed with reasonable dispatch in considering the proposed ordinance. Id. In determining whether the municipality has used “reasonable dispatch” to enact its ordinance, the Commonwealth Court has previously stated that a municipality did not proceed diligently when it took approximately a year and one month from the date of advertisement to enact its proposed zoning ordinance. Brookhaven v. Park, 408 A.2d 176, 178 (Pa. Commw. Ct. 1979). Finally, in determining whether to apply the pending ordinance doctrine, the goal is to:
[B]alance the interest of the municipality in effecting a change in its zoning laws free from the perpetuation of nonconforming uses against the interest of the individual property owner to be free from lengthy restraints upon the use of his property. Id.
It should be noted that the pending ordinance doctrine does not allow for the approval of a conditional use application pursuant to the requirements of an ordinance that has not been enacted yet. This is because the governing body may ultimately never enact the proposed ordinance. The pending ordinance doctrine, as explained above, only permits the refusal of an application or permit if there is pending an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought. Board of Supervisors of Greene Township v. Kuhl, 536 A.2d 836, 840 (Pa. Commw. Ct. 1988) (citing Marinari v. Zoning Hearing Board of New Hanover Township, 496 A.2d 121, 123-24 (Pa. Commw. Ct. 1985)).
Furthermore, the pending ordinance doctrine does not apply to applications for subdivision or land development because they are governed by section 508(4) of the MPC. Naylor v. Township of Hellam, 565 Pa. 397, 407 n.6, 773 A.2d 770, 776 n.6 (2001). Under section 508(4) of the MPC a subdivision or land development plan is governed by the zoning ordinance actually in effect at the time of filing. North Codorus Township v. North Codorus Township Zoning Hearing Board, 873 A.2d 845, 850 (Pa. Commw. Ct. 2005) (subdivision and land development plan filed after zoning ordinance amendment was enacted but before the effective date). While a land development application is pending, no change or amendment of the zoning shall adversely affect such application. 53 Pa. Stat. Ann. § 10508(4). So long as a land development application is pending, the applicant is entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed. This protection naturally extends to decisions regarding zoning relief where such relief is a necessary part of the land development plan. Bd. of Comm'rs of Cheltenham Twp. v. Hansen-Lloyd, L.P., 166 A.3d 496, 498 (Pa. Commw. Ct. 2017).
In considering what constitutes “land development” under the MPC, the courts have carved out from the definition certain development activities not involving buildings that the courts observed as lacking traditional indices of “large-scale” land development – intensity of use, new roads, utilities, common open space, etc. To date, the courts have concluded that billboards and cellular telecommunication tower structures are not land development. See Tu-Way Tower Co. v. Zoning Hearing Board of Township of Salisbury, 688 A.2d 744, 748 (Pa. Cmwlth. 1997) and Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board, 594 Pa. 58, 934 A.2d 1162, 1168-1170 (2007).
A municipality is not required to use the pending ordinance doctrine, and a landowner cannot force a municipality to use it. Hill v. Zoning Hearing Bd. of Chestnuthill Township, 626 A.2d 510, 512 (Pa. 1993) (“The Board properly held that landowners cannot utilize the [pending ordinance] doctrine where the township supervisors have decided not to apply it. . . . Application of the doctrine rests upon a policy decision to be made by the municipality, not the individual landowners.”)
This article is for informational purposes only and does not constitute legal advice.