Daily Development for Thursday, June 28, 2001

Daily Development for Wednesday, June 27, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ZONING AND LAND USE; MORATORIA LEGISLATION:

Pennsylvania rules that cities, even home rule cities, have no power under zoning enabling act to declare moratoria of existing zoning provisions while they are contemplating revised provisions.

Naylor v. Township of Hellam, No. J662000, 2001 WL 690655 (Pa. 6/ 20/01)

Township, concerned about the adequacy of its infrastructure to provide sewage facilities for new development, placed a temporary moratorium of one year on development on certain types of subdivisions and other development projects while it considered revisions to its ordinances.

New residential subdivisions were totally barred, while commercial and industrial development was barred to the extent that such development was not serviceable by the existing public sewer system.

Township ultimately extended the moratorium by an additional two months, and by that time Township had drafted and adopted a new zoning ordinance.

During the moratorium period, Landowners presented a proposed project to the Township's zoning officers that would have been eligible for approval under the ordinances as they existed prior to the moratorium.

The zoning officer rejected the application because it did not comply with the proposed new ordinance. Landowners then challenged the validity of the moratorium, arguing that the state zoning enabling statute permitted municipalities to change zoning laws, but not to suspend them without providing a substitute. The Pennsylvania Supreme Court agreed with the Landowners. Although the court confessed that statutes enabling zoning were to be construed broadly consistent with the interests of the public at large.

Nevertheless, the court noted that the zoning enabling act said nothing about suspension of ordinances. Township argued that the ability to suspend ordinances while new provisions were under consideration is a necessarily implied power, part of the overall license to zone provided by the statute. The court disagreed.

"Even construing the provisions of the [enabling act] liberally, we find that the power to enact a zoning ordinance, for whatever purpose, does not necessarily include the power to suspend a valid zoning ordinance to the prejudice of a land owner... More significantly, the power to suspend land development has historically been viewed in this Commonwealth as a power distinct from and not incidental to any power to regulate land development., Accordingly, as the [enabling act] is silent regarding land planning through the temporary suspension of development, we decline to condone a municipality's exercise of such power."

Note that, although there was no indicate that the Township in this case was a "charter" entity, the court cites to cases involving charter entities as support for its assertion that the powers of such entities in Pennsylvania involves only those expressly granted or necessarily inferred from the powers expressly granted. There is no general governance authority in charter municipalities in Pennsylvania, as there is in some other jurisdictions.

Comment 1: For a major departure from existing land use thinking, this case is very short and succinct, with no dissenters. The court cites cases going the other way in Connecticut, Louisiana, Mains, Massachusetts, Minnesota, New York and Wyoming. It gives no particular reason for disagreeing with these jurisdictions, and does not suggest that there is anything special in the Pennsylvania zoning enabling statute that would lead to a different result.

Comment 2: Is this just a group of cantankerous "owner's rights" judges bucking the trend, or is this a sea change in the judicial view of the power of municipalities to plan in the face of new developments?

Comment 3: Although a wide range of sins can be swept under the carpet of a "moratorium," municipalities have a reasonable argument that in a free market they cannot anticipate all changes in land use patterns that are likely to occur, and that from time to time they will be unable to reshape their ordinances to protect the public interest without suspending application of existing ordinances while new ones are drafted.

Landowners clearly deserve to have some reasonable process by which land use is controlled, but the editor believes that a moratorium of about a year is hardly an unreasonable imposition. The editor would not be surprised to see the Pennsylvania legislature come back with a revision of the enabling ordinance that will permit moratoria. But even that legislation likely will be a "win" for landowners, because the political process leading to such legislation is likely to involve some restriction of the moratorium power that was not perceived to exist earlier.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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