Recently, the Pennsylvania Commonwealth Court required a developer to abide by Township subdivision requirements in the development of a single family residential community even though compliance with the Township regulations required the development of land not owned by the developer adjoining the developer’s tract.
A land developer and a home builder filed a plan with a Perry County community to develop thirty four single family building lots and one public street. The planned street was approximately 5,500 feet in length which would end at the boundary line of the development. The street connected, at one end, to another public street in the Municipality but the development of the other end of the street as a through street needed to await the development of a parcel owned by another. In effect, until the neighboring parcel was developed, the developer’s 5,500 foot street would be a cul-de-sac or dead end street.
The local Subdivision and Land Development Ordinance (SALDO) prohibited cul-de-sacs or dead end streets which exceeded 500 feet in length. The plan, as presented to the Municipality required a dead end street or cul-de-sac of more than ten times the legal limit. The Planning Commission recommended that the plan not be approved until it could connect to the street to be developed on the neighbor’s land at some point in the future.
The Municipality’s governing body considered the Developer’s plan and approved the plan subject to the condition that the subdivision not be constructed until the neighboring parcel constructed the street to which it would connect (eliminating the dead end or cul-de-sac street) or until the developer put up adequate security for the completion of the street across the neighbor’s property.
The Developer did not accept the condition for approval, in essence converting the conditional approval to a rejection, but instead filed a land use appeal.
While Developer asserted that the street was never intended to be a permanent 5,500 foot cul-de-sac or dead end street, the Municipality indicated that the developer’s assertion is based upon an assumption that someday the neighboring parcel will be developed which may or may not ever occur. It is possible that the neighbor would develop a street connecting to the developer’s 5,500 foot street but that is not within the control of the Developer. The Township argued that, because it is possible that there will never be a street connecting to the one to be built according to the Developer’s plan, the road is designed to be a permanent cul-de-sac and therefore is in violation of the SALDO. Developer’s subdivision can demonstrate compliance with the ordinance only by citing anticipated, unenforceable actions of a third party not controlled by anyone in the current litigation.
The Perry County Court of Common Pleas affirmed the Township’s actions which was then appealed by Developer to Commonwealth Court. Last week, on January 8, 2013, the Commonwealth Court reiterated the right of the Municipality to enforce its SALDO and rejected Developer’s argument that an assumed action of a third party, could be the basis for determining a street, without connection controlled by Developer would change to a through street from a cul-de-sac. Since the plan does not comply with the Municipal SALDO the Municipality properly conditioned its acceptance and, since Developer did not accept the condition, the Municipality properly rejected the plan.