Commonwealth Court Offers Reminder that Land Development Waivers Must Meet Undue Hardship Threshold

by Eric M Brown on Aug. 08, 2018

Government State and Local Real Estate  Land Use & Zoning Lawsuit & Dispute 

Summary: The Pennsylvania Commonwealth Court recently emphasized to developers and municipalities the need to properly justify waivers from provisions of a subdivision and land development ordinance (SALDO) during the land development process. Link:

In Lake MacLeod Homeowners’ Association, Inc. v. Pine Township Board of Supervisors and Cavalier Partners, LP, the Court sided with the objectors by holding that the board of supervisors had improperly granted land development waivers to a developer. The Court reversed the decision approving the waivers and granting conditional use and land development plan approval to the developer.

The developer, Cavalier Land Partners, LP, submitted an application to build a 244-lot mixed residential development on 85 acres of land in Allegheny County. As part of the application, Cavalier requested several waivers. Cavalier also filed an application for a conditional use for approval to build “patio homes” as part of its development, a use permitted by conditional use¹. A neighboring homeowners’ association and numerous individual landowners objected to the plan.

Both the conditional use decision and preliminary plan approval were granted by the board of supervisors.² In doing so, the Board of Supervisors also granted the developer waivers from: (a) compliance with the fill standards related to excavation; (b) certain street requirements governing the width of streets and the number of dwelling units served by a street; and (c) a provision concerning steep slope controls. The Supervisors held that the waivers were justified by the physical conditions of the property, which were of sufficient character or uniqueness to support their approval. However, the Board of Supervisors did not explain how the waivers were necessary to prevent undue hardship. Instead, in justifying the approval of the waivers, the Board found, among other things, that the waivers allowed for “a more pleasing visual effect” of the proposed development and limited the overall site disturbance. Objectors appealed both the grant of the conditional use and the preliminary plan approval.

On appeal, the Commonwealth Court held that the Township erred in granting the requested waivers because no explanation was provided to clearly or specifically address how the waivers were necessary to prevent undue hardship based on the unique physical conditions of the property. While the Township justified the waivers due to visual appearance, the Court held that the aesthetic concerns alone do not constitute undue hardship.

This decision serves as a reminder to both developers and municipalities that the procedural dictates and standards of the MPC governing waiver requests should be strictly followed to ensure that land development decisions are not subject to reversal when challenged by objectors. Section 512.1 of the MPC requires all requests by a developer for waivers be made in writing, and must state: the grounds for claiming a hardship based on the physical condition of the land; the provision(s) of the ordinance involved; and how the request is the minimum modification necessary.

In summary, the Commonwealth Court appears to be signaling less deference toward SALDO waivers than is commonly applied. In contested applications, more focus should therefore be put on a developer’s expressed justifications for the waivers sought, and explicit findings as to the same should be incorporated into the township’s written decision. Doing otherwise creates a risk that the plan decision itself may be reversed on appeal in the event that adjacent property owner(s) appeal the decision.

  1. A “patio home” is “a single family dwelling, which includes a master bedroom suite on the first (ground) floor, along with cooking, eating, and living areas. Patio homes shall have an attached garage of sufficient size for two vehicles.”
  2. During the pendency of the land use appeal, the board of supervisors granted final land development plan approval to Phase I of the project, which was also appealed by the objectors.

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