In Re: ZHB of Cheltenham Twp 12-16-15 Decision ( 2019 )

[J-89-2018] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: APPEAL OF THE BOARD OF : No. 3 MAP 2018
COMMISSIONERS OF CHELTENHAM :
TOWNSHIP FROM THE DECISION : Appeal from the Order of the
DATED DECEMBER 16, 2015, OF THE : Commonwealth Court at No. 1317 CD
ZONING HEARING BOARD OF : 2016 dated July 6, 2017 Affirming the
CHELTENHAM TOWNSHIP : Order of the Court of Common Pleas
: of Montgomery County, Civil Division,
: at No. 2016-00752, dated July 7, 2016
APPEAL OF: BOARD OF : and exited July 11, 2016.
COMMISSIONERS OF CHELTENHAM :
TOWNSHIP : ARGUED: December 4, 2018
DISSENTING OPINION
JUSTICE WECHT DECIDED: July 17, 2019
“Every statute shall be construed, if possible, to give effect to all its provisions.”
1 Pa.C.S. § 1921(a). I cannot join the Majority, because in considering the two statutes
at issue in this case, it disregards a material textual asymmetry between the statutes that
speaks directly to the question upon which we granted review and, in my view, compels
a contrary result.1
At issue in this case is the interplay between the statutory process that applies to
subdivision plan (or “plat”) applications submitted to a governing body and the discrete
1 We granted allowance of appeal to consider: “Did the Commonwealth Court
overlook the express language of 53 P.S. [§] 10917 by holding that a zoning application
for special exception is governed by an ordinance other than the ordinance in effect when
the zoning application was filed?” In re: Appeal of the Bd. of Comm’rs of Cheltenham
Twp., 179 A.3d 1079, 1079 (Pa. 2018) (per curiam).
statutory process that applies to an application to a zoning board for a special exception.
Plat approval, a prerogative that has been conferred by the General Assembly upon the
governing body or planning agency of the jurisdiction in question, is controlled by Article
V of The Pennsylvania Municipalities Planning Code, 53 P.S. §§ 10101, et seq. (“MPC”).2
Article V governs “Subdivision and Land Development.” Zoning approvals, which are
subject to approval by a separate body, here a zoning hearing board, are considered
pursuant to MPC Article IX, which concerns “Zoning Hearing Board and Other
Administrative Proceedings.”
Article V, Section 10508 (“Approval of plats”3), which took effect in its present form
on August 22, 2000, provides, in relevant part, as follows:
(4) Changes in the ordinance shall affect plats as follows:
(i) From the time an application for approval of a plat, whether
preliminary or final, is duly filed as provided in the subdivision and
land development ordinance, and while such application is pending
approval or disapproval, no change or amendment of the zoning,
subdivision or other governing ordinance or plan shall affect the
decision on such application adversely to the applicant and the
applicant shall be entitled to a decision in accordance with the
provisions of the governing ordinances or plans as they stood at the
time the application was duly filed. . . .
53 P.S. § 10508 (emphasis added). Thus, by its terms, Section 508 ensures that the plat
application, itself, will be considered strictly under the ordinances that applied at the time
of its filing.
2 The Majority provides a fuller account of the MPC relative to this case. See Maj.
Op. at 2-6.
3 Like the Majority, for simplicity’s sake I refer to the tentative sketch plan underlying
the instant matter as the “plat” or “plan,” and the associated application as a “plat
application.”
[J-89-2018] [MO: Baer, J.] - 2
The Majority correctly notes that, under Cheltenham Township’s ordinance, the
preliminary sketch plan submitted by Hansen-Lloyd, L.P. (“Developer”) counted as a
preliminary plat application, see Maj. Op. at 7 & n.4, and that, by virtue of the continued
extensions agreed to by the parties with regard to the plan, that application remained
subject to the relevant ordinances as they existed when that application was filed, as
assured by Section 508. But just as clearly, the statute is silent about whether the law
that applied at the time the preliminary application is filed applies also to any other
incidental legal approvals necessary to complete the development, including special
exceptions under the zoning ordinance sought before the zoning hearing board. Here,
the governing body informed Developer in its letter acknowledging receipt of its plat
application that Developer’s plan would not be granted unless and until the zoning hearing
board approved two special exceptions. See Maj. Op. at 7.
Applications for special exceptions are controlled in relevant part by 53 P.S.
§ 10917. Like Section 508, Section 917 expressly provides that the board will review a
zoning application according to the zoning law as it applied at the time that the application
was filed. Unlike Section 508, Section 917—which took effect in its present form on
February 20, 2001, and which explicitly cross-references Section 508—expressly
provides a safe harbor for plat applications associated with the project for which the
special exception is sought.
When an application for either a special exception or a conditional use has
been filed with either the zoning hearing board or governing body, as
relevant, and the subject matter of such application would ultimately
constitute . . . a subdivision as defined in [53 P.S. § 10107], no change or
amendment of the zoning, subdivision or other governing ordinance or plans
shall affect the decision on such application adversely to the applicant, and
the applicant shall be entitled to a decision in accordance with the provisions
of the governing ordinances or plans as they stood at the time the
[J-89-2018] [MO: Baer, J.] - 3
application was duly filed. Provided, further, should such an application be
approved by either the zoning hearing board or governing body, as relevant,
applicant shall be entitled to proceed with the submission of . . . subdivision
plans within a period of six months or longer as may be approved by either
the zoning hearing board or the governing body following the date of such
approval in accordance with the provisions of the governing ordinances or
plans as they stood at the time the application was duly filed before either
the zoning hearing board or governing body, as relevant. If either a land
development or subdivision plan is so filed within said period, such plan
shall be subject to the provisions of section 508(1) through (4) and
specifically to the time limitations of section 508(4) which shall commence
as of the date of filing such . . . subdivision plan.
53 P.S. § 10917 (emphasis added, footnote omitted). Thus, unlike Section 508,
Section 917 specifically anticipates and provides for a circumstance in which a developer
requires both plat and zoning approvals to proceed with a development, fixing the law as
to the latter for a period of six months after the special exceptions are granted.
“The object of all interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). “When the words
of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” Id. § 1921(b). In ascertaining legislative intent,
we may presume “[t]hat the General Assembly intends the entire statute to be effective
and certain.” Id. § 1922(2). Finally, statutes that “relate to the same persons or things or
to the same class of persons or things” are “in pari materia,” and, as such, “shall be
construed together, if possible, as one statute.” Id. § 1932.
The Majority reasons that the two provisions are mirror images of each other, with
either of the two sections ensuring that the ordinance at the time of the first-filed
application governs all associated approval processes for the entire development, based
upon whether the developer files its plat or its zoning application first. It begins by quoting
what it takes to be the relevant language of each statute, i.e., the parallel language in
both sections providing that the law that applied at the time of the application relevant to
[J-89-2018] [MO: Baer, J.] - 4
the statute in question continues to apply to that application until it is approved or rejected.
Focusing thus upon the extent to which the statutes echo each other, the Majority finds
that “[t]he above language of Subsection 508(4)(i) and Section 917 clearly provides the
same type of protection for a proposed development project.” Maj. Op. at 17. In so
finding, the Majority makes no mention of the fact that Section 917, and Section 917 only,
explicitly provides a safe harbor to ensure that its counterpart plat application enjoys the
protection of the same law as applied when the zoning application was filed.
The Majority further notes that neither Section “requires submission of one
application before the other,” such that “Developer was free to begin the development
process with the filing of either a [plat] application under Section 508 of the MPC, or a
zoning application under Section 917 of the MPC.” Id. at 18. The Majority then observes
that the zoning change that was implemented in 2012, during the protracted pendency of
Developer’s plat application,4 “was adverse to Developer’s 2008 Sketch Plan, as the
parties stipulated that Developer’s zoning requests do not meet the criteria under the
2012 zoning ordinance for a special exception, two of which are needed for the proposed
development.” Id. at 18. Thus, the Majority correctly concludes, the zoning changes do
not apply to the plat application, which was filed when the 2008 Ordinance still applied
and was entitled under Section 508 to be decided under that Ordinance.
Next, the Majority turns to the zoning application, noting that the applicable local
Subdivision Code “require[s] that Developer’s 2008 Sketch Plan comply with the
[Cheltenham] Zoning Code unless the ZHB has granted special exceptions.” Id. at 18-
19. Without significant additional reasoning, the Majority concludes that, “where ‘[such]
relief is a necessary part of the land development plan,’ we agree with the Commonwealth
4 The Majority provides a more detailed account of the zoning ordinances and
amendments thereto at issue. See Maj. Op. at 4-6.
[J-89-2018] [MO: Baer, J.] - 5
Court that Section 508(4)(i)’s protection of pending [plat applications] extends to the
decisions on the requested zoning relief needed for purposes of land development plan
approval.” Id. at 19 (quoting Bd. of Comm’rs of Cheltenham, Twp. v. Hansen-Lloyd, L.P.,
166 A.3d 496, 505 (Pa. Cmwlth. 2017)). The Majority adds that “to hold otherwise would
enable a municipality to disapprove a [plat application] based on a zoning change adverse
to the [application] in contravention of the protection offered by Section 508(4)(i).” Id.
As noted, the Majority makes much of the fact that the legislature did not specify
that one category of application must be submitted before the other.5 That clearly is the
case. But that observation alone offers no support to any particular resolution of the
interpretive question before us. Nothing prevents the General Assembly from attaching
advantages or disadvantages to developers depending upon whether they submit
multiple applications necessary to proceed with a development in one order or another.
Indeed, it may do so explicitly or by implication, for reasons that might seem sound or
unsound. If the relevant provisions of the MPC read together as a whole, in their full
context, and according to their plain language leads inexorably to such a result, and if no
constitutional requirement is violated in the effort, we may not second-guess the
legislature’s choice. See Williams v. GEICO Gov’t Emps. Ins. Co., 32 A.3d 1195, 1204
(Pa. 2011) (“[I]t is not the proper function of this Court to weigh competing public policy
interests; rather that task is best suited for the legislature.”).6
5 See Maj. Op. at 18 (“[N]either Subsection 508(4)(i) nor Section 917 requires
submission of one application before the other, and the parties do not cite, nor have we
uncovered, any provision of the MPC, Subdivision Code, or Zoning Code that imposes
such a requirement.”).
6 Furthermore, the Majority cites nothing more than Developer’s own stated
preference for the approach that it chose as evidence that an asymmetrical account, by
creating an incentive for developers to begin the approval process by filing any necessary
zoning applications, might reflect “bad” policy. As esoteric as land use and zoning
regulations can be, I would not assume symmetry of application, with all discretion and
[J-89-2018] [MO: Baer, J.] - 6
The Majority’s approach depends upon its inference that a plat application
necessarily subsumes, and shares its protections with, any other application that must
precede its approval, even when the incidental approval in question must be sought
before a discrete administrative body, pursuant to a separate statutory procedure,
according to criteria with no direct bearing on the plat application to which Section 508
exclusively refers. In this case, the Majority posits, because the governing body could
not approve the plat application without the ZHB’s approval of special exceptions, the
zoning application became nothing more than an element of the plat application, subject
without qualification to the protections that Section 508 confers by its plain language only
upon the plat application.
The Majority’s inference in this regard, combined with its apparent acceptance of
Developer’s reliance upon under-defined “vesting rights,”7 necessitates the symmetry of
the application-specific protections conferred by both sections, which the Majority
embraces. See Maj. Op. at 19 n.11 (holding that “[o]ur interpretation of Section 508(4)(i)
permits the developer to seek land development approval first and receive that same
protection for future-filed zoning applications” as the protection provided in the reverse
attendant protections afforded to the whim of developers, would be in the public interest.
Cf. 1 Pa.C.S. § 1922(5) (allowing courts to presume that “the General Assembly intends
to favor the public interest against any private interest”). In any event, such a policy-laden
evaluation is not within the Court’s purview.
7 The Majority does not employ this terminology, as such, but its analysis is
inseparable from the concept, which it recites in its account of the trial court’s opinion,
with which the Majority finds no fault. See Maj. Op. at 10 (“The trial court posited that the
law clearly permitted a developer to obtain ‘vesting rights’ by filing either a land
development application or a zoning application, and that because Developer chose to
file its 2008 Sketch Plan first, it obtained vesting rights, inter alia, in the 2008 Zoning
Ordinance.”). But what rights are “vested,” if any, is essentially the very question as to
which we granted review. To posit this as a premise rather than to arrive at it as a logical
conclusion begs the question and muddies the inquiry.
[J-89-2018] [MO: Baer, J.] - 7
scenario by Section 917). Thus, what is true of plat applications filed under Section 508,
the Majority reasons, also must be true of zoning applications filed under Section 917.
If the Majority is correct that a plat application subsumes and protects all related
applications that the development in question requires, and if it is correct that filing either
application creates “vesting rights” that freeze the applicable land use and zoning law
indefinitely as to all approvals that the development requires, then, a fortiori, a zoning
application, when it is the first item filed, subsumes all related approvals, including plat
applications associated with the development for which zoning approval is sought. Thus,
those who file for zoning approvals first also would enjoy indefinite protections against
changes in the law that might bear upon the plat application that the zoning approval
ultimately will require, no matter how much time separates the zoning application’s
submission and the submission of the related plat application. In this way, the Majority
simultaneously writes a version of Section 917’s safe harbor into Section 508 without any
time limitation, while simultaneously writing the express time limitation out of
Section 917’s safe harbor, which, as noted above, limits its safe harbor for a plat
application to the six months following approval of the special exception.
I find it bewildering that the Majority finds no material import in this substantial
difference between the statutes on the very scenario presented in this case, which we
must account for interpretively on the assumption that the legislature intended the
differentiation to have some effect. See Commonwealth v. Giulian, 141 A.3d 1262, 1268
(Pa. 2016) (“[A]lthough one is admonished to listen attentively to what a statute says[,]
one must also listen attentively to what a statute does not say.”). In this regard, I find it
striking that Section 917 took effect in its present form six months after Section 508 took
effect in its present form, and that it cross-references Section 508. If the Majority’s
account of the General Assembly’s intent with regard to Section 508 is correct, then it is
[J-89-2018] [MO: Baer, J.] - 8
unclear why the legislature would have thought it necessary to spell out in Section 917
the legal protections that the legislature intended to imply in Section 508—indeed, it does
so specifically with respect to applicable time limits. Moreover, if the General Assembly
intended that Section 508’s protections should apply indefinitely to every zoning approval
the plan required, it would not have imposed a time limit upon Section 917’s express safe
harbor for precisely the situation in which plat and zoning approvals both are required for
a development to proceed.
In effect, the Majority adds an absent term to Section 508 that the General
Assembly clearly knew how to spell out, as shown by the fact that the lawmakers soon
thereafter did so in Section 917. We must not add terms to statutes that the legislature
chose to omit. See Mohamed v. Commonwealth, Dep’t of Transp., Bureau of Motor
Vehicles, 40 A.3d 1186, 1194-95 (Pa. 2012) (“[W]here the language of a statute is clear
and unambiguous, a court may not add matters the legislature saw fit not to include under
the guise of construction. . . . Any legislative oversight is for the General Assembly to fill,
not the courts.”). Second, if Section 917’s protections are to run indefinitely, as the
Majority holds Section 508’s implicit protections do, then the statute’s six-month time limit
is a dead letter. This, too, violates a time-honored interpretive rule. See Bd. of Revision
of Taxes, City of Phila. v. City of Phila., 4 A.3d 610, 622 (Pa. 2010) (holding that we may
not “ignore the language of a statute, nor may we deem any language to be superfluous”).
Conversely, reading Sections 508 and 917 in pari materia, such that each of their
provisions has discrete effect, requires us to recognize that the inclusion of a time-limited
safe harbor in Section 917 renders the lack of such a provision in Section 508
conspicuous, and material, by its absence. See Fonner v. Shandon, Inc., 724 A.2d 903,
907 (Pa. 1999) (“[W]here the legislature includes specific language in one section of the
statute and excludes it from another, the language should not be implied where
[J-89-2018] [MO: Baer, J.] - 9
excluded.”). In particular, in the lone instance in which the legislature saw fit to speak to
time limits, it signaled clearly that it did not think it wise to grant developers protections
that stretched indefinitely into the future.
We granted review to consider whether “the Commonwealth Court overlook[ed]
the express language of 53 P.S. [§] 10917 by holding that a zoning application for special
exception is governed by an ordinance other than the ordinance in effect when the zoning
application was filed.” In re Appeal of the Bd. of Comm’rs of Cheltenham Twp., 179 A.3d
at 1079 (per curiam). The Commonwealth Court did precisely that. The Majority
embraces its reasoning nonetheless.
Perhaps it would be more equitable for the General Assembly to freeze the law
upon the filing of any application associated with a development with respect to any other
step necessary to secure approval for that development, regardless of which approval the
developer chooses to seek first. But it is not for this Court to opine upon the General
Assembly’s wisdom, nor to correct perceived deficiencies in that regard. The statutes are
clear. Section 508’s safe harbor does not under any circumstances extend beyond the
plat applications to which it exclusively refers or supplant Section 917’s similar but
critically distinct safe harbor. Thus, I respectfully dissent.
Justice Todd joins this dissenting opinion.
[J-89-2018] [MO: Baer, J.] - 10