Developers may file inconsistent and mutually exclusive subdivision/land development plans and implement the plan of their preference

Developers may file inconsistent and mutually exclusive subdivision/land development plans and implement the plan of their preference

Summary 
The Commonwealth Court of Pennsylvania has held that a developer may file inconsistent subdivision or land development plans and is entitled to action on all applications; moreover, developers may submit mutually exclusive plans and, after securing approval of those conflicting plans, are free to implement the plan of their preference.

On August 10, 2012 the Commonwealth Court of Pennsylvania affirmed a trial court's decision to dismiss an objector's land use appeal as moot after the developers submitted and received approval on a new land development plan pertaining to the same subject property. DeFillippo v. Cranberry Twp. Bd. of Supervisors, 49 A.3d 939 (Pa. Cmwlth. 2012). The court held that developers may submit mutually exclusive plans and, after securing approval of those conflicting plans, are free to implement the plan of their preference. The court further held that the pendency of an appeal on one plan does not divest a municipal body from rendering a decision on a second and distinct plan proposed by the same developer for the same property.

In the subject case, Carsense, Inc. submitted a land development and conditional use application to construct an automobile sales and service center, requiring 13 variances. It was approved by the Cranberry Township Board of Supervisors. Objectors appealed the Supervisors' decision to the trial court. While the appeal was pending, Carsensesubmitted a second application with only five variances that was also approved.

Notably, no appeal was taken on the second approval. Instead, the Objectors filed a "Supplement to Appeal," appealing the second approval. Objectors argued, among other things, that their pending appeal stripped the Board of its jurisdiction to consider the second application because the submitted plans were for the same property as the first application. Carsense moved to dismiss the appeal as moot and the trial court granted Carsense's motion. From that decision, an appeal was taken to the Commonwealth Court.

The Commonwealth Court upheld the trial court's decision and held that the second plan was an entirely new plan. The court found that Carsense had "made significant changes in its proposed development, both in location and orientation of the building." The significant changes created a new plan and, in turn, allowed the Board to perform an unfettered review.

In its decision, the Commonwealth Court also relied on Section 1002-A(a) and 1003(A)(d) of the Municipalities Planning Code, which stands for the proposition that "a land use appeal does not stay the effectiveness of the local government's order nor does it bar a property owner from considering and proposing a different land development plan or zoning application."

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