Robert Saidis, Esquire
July 10th, 2018
With increasing frequency, what most Developers and Commercial Realtors think is a permitted use, is not. Zoning ordinances have been tweaked, rewritten or adapted in townships and boroughs to move permitted commercial uses to “Conditional Uses” or “Special Exceptions.”
If a project is a permitted use, such as a restaurant, retailer or drycleaner, the Developer’s next step (presuming compliance with the zoning ordinance requirements such as screening, parking and building height) is submitting a Subdivision and Land Development Plan.
This article explores the reasons why municipalities are requiring more Conditional Uses. A Conditional Use is nothing more than a Special Exception, which falls within the jurisdiction of the municipal governing body, rather than the Zoning Hearing Board. The municipal governing body has significantly more authority than the Zoning Hearing Board. These additional powers come into play when attempting to negotiate the reasonable conditions to be placed on the grant of the Conditional Use.
A Conditional Use is defined “as a use to which the Applicant is entitled, provided that specific standards of the Zoning Ordinance are met.”[1]
Developers like certainty. Time is money. Extended discussions, negotiations and a multitude of conditions jeopardize projects.
Frequently, the Conditional Use is used by municipalities to sidestep the requirements of the Pennsylvania Municipality’s Planning Code. The Pennsylvania Municipalities Planning Code prohibits requiring offsite improvements from a Developer.[2] A municipality cannot insist on offsite traffic signals, road improvements or the like, without a Developer’s consent.
On the other hand, a municipality’s employment of the Conditional Use can be viewed as a positive. It could be argued that a municipality’s use of Conditional uses protects the public health, safety and welfare of its citizens and, at the same time, allows a Developer to know what is expected when the Developer works within the municipality.
This sounds good, but may not really comply with the case law. When dealing with Conditional Uses, the governing body may impose only reasonable conditions. Reasonable conditions are those that advance a valid zoning interest, are supported by the record and relate to the specific zoning ordinance at issue.[3]
It is arguable that the reasonable conditions cannot advance the Subdivision and Land Development Ordinance of the municipality, offsite improvements or other unrelated conditions not specific to the zoning ordinance.
Often, a municipality does not request, but makes the Developer aware, that “voluntary” contributions to road improvements, traffic signals or other municipality priorities are welcome and then assists the Developer in securing the Conditional Use approval. Consequently, it is not unusual to see a zoning ordinance with a dozen, or so, permitted uses in a C-2 zone and the same number of Conditional Uses. This movement towards Conditional Uses enables the elected officials of a municipality to maintain oversight of commercial development. By reserving approval, as a Conditional Use, the elected officials of a municipality have significant control of commercial development.
For instance, an upscale children’s daycare and learning center secured its Conditional Use in Dauphin County upon the payment of $5,000.00. The money was targeted as a portion of the cost of installing a traffic signal approximately a mile away.
In Cumberland County, a hotel along the interstate secured its Conditional Use approval when the Developers voluntarily agreed to contribute $20,000.00 to the Municipality’s general traffic fund. These funds, most likely, will be targeted for an intersection within a half mile of the facility. However, there is no legal requirement on the Municipality as to that use.
So how do the Developer and the Municipality negotiate? Due to the Sunshine Act, the actual negotiation is somewhat difficult. In various municipalities, negations are held with the Planning Department, who then relays the offer to the elected officials. Other municipalities will have one or two elected officials involved in the discussions. Since this is not a quorum, the meetings need not be sunshined, and allows the elected officials to take the information back to their fellow supervisors or commissioners.
This commentary is not meant to take a position as to whether Conditional Uses, under these circumstances, are good or bad. There is an argument, favorable to the municipalities, that Conditional Uses provide control for certain types of uses which may affect the infrastructure of the municipality. Developers may also see this as a positive situation, as they know exactly what the municipality anticipates from them at an early stage of development. The acceptance of their project does not have to wait until there is technical compliance with the Subdivision and Land Development Ordinance and requests for waivers or deferrals. Increasingly, Conditional Uses are a fact of everyday commercial development, the consequences of which Developers must be aware.
Robert C. Saidis, Esquire has been practicing real estate law for more than 30 years. Mr. Saidis oversees the real estate, land use and title insurance departments of the practice at Saidis. Shultz, and Fisher. Mr. Saidis may be reached at 717-590-8529 or by email at rsaidis@ssfadvocates.com.
[1] Feldman v. Board of Sup’rs of East Cain Tp. 48 A.3d 543(Pa. Cmwlth 2012)
[2] 53 PS 10503-A(b)
[2] In re: Maibach, LLC 26 A.3rd 1213 (Pa. Cmwlth 2011)
