You’re Developing Your Property but Your Municipality Announces Zoning Changes. Now What?

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Your engineer calls you as you’re standing over two alternative site plans one afternoon, deciding which you want to submit to the municipality for your project. Your engineer tells you that the municipality is planning to change its zoning ordinance and map in a way that will not permit your project. However, your project is permitted under the current zoning ordinance and map. Will you be able to develop your property as you planned?

Because of the Pending Ordinance Doctrine, the answer depends on the type of approval you are seeking.

So, what is the Pending Ordinance Doctrine? In brief, it is a rule that allows a municipality to deny a building permit for a use (and, by extension, applications for zoning relief required for issuance of a building permit) if that use will be prohibited under an ordinance change that is “pending.” An ordinance change is “pending” once the municipality’s governing body:

(1) proposes a new zoning ordinance
(2) makes the proposed change available for the public to inspect
(3) advertises in an area newspaper of general circulation that the proposed change will be discussed at a future public meeting

If all three of those things have occurred, the municipality may deny an application for a use that will be prohibited by the ordinance change, even if the change has not yet been formally enacted into law.

However, there are important statutory exceptions to this general rule. First, the doctrine does not apply to subdivision and land development applications if the preliminary plan is submitted before the formal enactment of the ordinance change. If the preliminary plan is submitted before the formal enactment of an ordinance change, the entire subdivision or land development application will be shielded from the ordinance change, even if the final plan is submitted after the change is enacted. However, all aspects of the application and plan must conform to the municipality’s technical and design requirements in order for this protection to apply. In municipalities that require the submission of a sketch plan prior to a preliminary plan, the submission of the sketch plan is sufficient to protect the entire application from the ordinance change. Submitting a sketch plan will not shield you from a pending ordinance change if the municipality merely recommends a sketch plan rather than requiring it, so your attorney should take care to confirm the local plan requirements.

Another exception to the Pending Ordinance Doctrine is if an applicant applies for certain types of zoning relief for a project that would ultimately qualify as either “subdivision” or “land development.” For example, if an applicant files an application for a “special exception” to build multi-family homes before an ordinance change is enacted, then both the special exception application and the future land development application and plan will be shielded from the ordinance change if the land development application is submitted within six months of the special exception’s approval.

Unfortunately for property owners and developers, not all types of zoning relief applications submitted before the start of the land development or subdivision process are exempted from the Pending Ordinance Doctrine. Similarly, applications for special exceptions and conditional uses are not exempted where the project would not eventually require land development or subdivision approval. In both these situations, the new “pending” ordinance or zoning map would apply.

If you plan on submitting an application for zoning relief or subdivision/land development, you may contact Matthew McKeon at mmckeon@macelree.com or 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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Matthew McKeon is an attorney in MacElree Harvey’s Land Use Practice Group. He focuses his practice primarily on land use, zoning, and litigation-related matters. He earned his J.D. from Syracuse University College of Law and his B.A. in Political Science and History from the University of Vermont.

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