Planned Residential Developments (PRDs) are a popular zoning classification across the Commonwealth, especially in the western Pennsylvania suburbs surrounding Pittsburgh. PRDs attract developers because they allow flexibility in the application of zoning requirements in exchange for large amounts of green space, or “common open space” and recreation. These flexibilities tend to allow for a higher density, different permissible kinds of housing units, and shorter setbacks than what would otherwise be permitted in the underlying zoning district. 

A review of Pennsylvania case law reveals little precedent in the area of PRDs. As a result, Pennsylvania municipalities are struggling to enact and administer ordinances that provide adequate protection for their residents while maintaining a level of flexibility for developers.  Even where PRD ordinances have been in place for years, local governing bodies do not always grasp the significance of PRDs and fail to provide appropriate scrutiny of proposed plans. 

PRDs are not like other zoning mechanisms. The governing body of the municipality has exclusive jurisdiction to hear and render final adjudications on PRDs.  PRDs have a tremendous impact on the zoning scheme of the enacting municipality because they represent a departure from traditional and underlying zoning requirements. The departures from the underlying zoning ordinance can be so vast that approval of a PRD is considered a change in the zoning map. 53 P.S. 10710. The significance of each approved PRD is indicative of the serious approval process that must be followed by the municipality.

First, the developer must apply for tentative approval, which requires a public hearing pursuant to public notice. 53 P.S. § 10708(a); 53 P.S. § 10908. After the hearing, the municipality must provide a written communication regarding its decision to grant, grant with conditions, or deny tentative approval. This decision must include conclusions and findings of fact related to the specific proposal. The Pennsylvania Municipalities Planning Code provides for particular considerations that must be addressed in the municipality’s written communication. These considerations include, but are not limited to, the extent to which the plan departs from zoning and subdivision regulations otherwise applicable to the subject property; the purpose, location and amount of the common open space in the development; and the relationship, beneficial or adverse, of the proposed development to the neighborhood in which it is proposed to be established. 53 P.S. § 10709(b). The tentative approval process is the main playing field for approval of a PRD and, as such, approval or denial of an application for tentative approval is appealable to a court of common pleas. 53 P.S. § 11002-A.

After receiving tentative approval, the developer must apply for final approval. The MPC does not require a formal public hearing for final approval, although the municipality’s ordinance may provide for one. Final approval may only be denied if the final development plan as submitted contains substantial variations from the successful tentative approval plan. Because of this standard, a stamp of final approval is often just a formality.

Recently, the Pennsylvania Commonwealth Court rendered two different decisions regarding the same proposed PRD in Indiana Township, Allegheny County. This case is called Gouwens v. Indiana Township Board of Supervisors.  The first decision was handed down in June of 2019 (“Gouwens I”). Gouwens I, — A.3d —-2019 WL 13040282 (Pa. Commw. Ct. 2019). The second decision was handed down in July of 2021 (“Gouwens II”). Gouwens II, — A.3d —-2021 WL 4075406 (Pa. Commw. Ct. 2021).  The Gouwens opinions constitute a clear signal from the Commonwealth Court that it considers the review of a PRD to be a serious process requiring careful scrutiny from the governing body. 

The Gouwens case involved a proposed 91 townhome unit PRD. The Township’s ordinance contained several specific mandatory criteria for approval of a tentative PRD.  One of those criteria was a “to create variety in the type, design and arrangement of housing units.”  The ordinance also required “[n]o less than 20% of the [PRD] shall be set aside for Common Open Space.” which was defined to mean space set aside for the “use or enjoyment of the residents.”  The proposed plan contained only townhomes, albeit several different models of townhomes. More so, much of the open space was characterized by steep slopes and stormwater facilities. The plan did not have any recreation features, and, by the admission of the developer, the common open space was “passive” in nature. Nonetheless, the Township’s Board of Supervisors granted tentative approval to the plan. Several neighboring property owners objected to tentative approval and contested it in court. 

Gouwens I emphasized the importance of the governing body’s written decision on tentative approval of a PRD. There, the Commonwealth Court vacated the lower court’s decision affirming the Board’s decision and remanded the case for the Board to “render findings of fact and explain how the Plan meets the purposes of a PRD …and explain the reasons that it granted tentative approval of the Plan as to all criteria …”  Gouwens I, at *8. 

The Commonwealth Court took this action because it could not “ascertain why the Board granted tentative approval of the Plan. The purpose of a board’s written decision is to enable a reviewing court and applicant to understand the reasons for the board’s decision and to show that the decision is reasoned and not arbitrary.” Gouwens I, at *3. The Court specifically took issue with the Board’s sweeping generalizations that the plan met certain ordinance criteria without more explanation.  This opinion by the Court supports the notion that a decision on a PRD must by descriptive and thoughtful because the approval of a PRD represents a change to the zoning map. If the approval of a PRD was arbitrary or capricious, it would create an unjustifiably high-density island in which the characteristics of the PRD are irrationally different from those permitted elsewhere in the underlying zoning district, akin to spot zoning. 

After the Commonwealth Court’s remand in 2019, the Board provided a revised written decision, which was again affirmed by the lower court and appealed to the Commonwealth Court.  Gouwens II reversed the lower court and finally shot down the proposed plan. 

Specifically, the Court rejected the developer’s position that multiple townhome models satisfied the ordinance’s requirement for a variety in the type of housing.  Moreover, the Court agreed with the residents that the plan lacked sufficient common open space and found that the Board had disregarded the plain language of its own ordinance in approving the plan. The Court wrote, “[g]iven the unique nature of a PRD and its character as a departure from traditional zoning requirements, a zoning board must ensure, prior to granting tentative approval, that the planned PRD does, in fact, meet the specific requirements in the locality’s zoning ordinance.” Gouwens II, at *3.

This decision discussed the broad powers of the municipality to carefully design a PRD ordinance to protect its residents while still promoting the flexibility and environmental goals of a PRD. Because a municipality has so much control over what goes into its ordinance, the municipality must strictly interpret its ordinance in a reasonable manner when it considers applications there under. Although a governing body is entitled to deference when interpreting its own ordinance, the faults of a bad ordinance cannot be corrected by arbitrary or unreasonable interpretations crafted to fit the will of the body. 

PRD ordinances and the developments they allow are unique and consequential, not to be taken lightly. These developments pose significant changes to a community and can either beneficially or adversely impact the character of the neighborhood in which they are proposed to be established. It is important that PRD ordinances provide a balance of flexibilities to developers while maintaining protections for residents. 

Alan Shuckrow and Alexis Wheeler of Strassburger McKenna Gutnick & Gefsky represented the residents/neighbors in the Gouwens case. 

By: Alan T. Shuckrow and Alexis M. Wheeler

On October 26, 2018, The Commonwealth Court handed down another opinion in a recent line of case law developing oil and gas land use and environmental regulation in Pennsylvania, Frederick v. Allegheny Township.[1] Allegheny Township is an en banc decision penned by President Judge Leavitt, with Judges McCullough and Ceisler authoring dissenting opinions. Allegheny Township involves an ordinance permitting oil and gas development as a “use by right” in all zoning districts in the Westmoreland County Township.

In 2014, landowners appealed a zoning permit issued to a gas company for an unconventional gas well in an Agricultural/Residential Zoning District of the Township. Approval under the ordinance was subject to a number of conditions, including the issuance of a DEP permit and meeting state-imposed setbacks under the Oil and Gas Act, which was partially enjoined under Robinson Township II.[2] The objectors argued that the gas well use was incompatible with the underlying district and that their rights under the Environmental Rights Amendment (ERA) of the Pennsylvania Constitution, as proximate land owners in a residential district, were infringed by the “industrial” nature of the well.

The objectors also argued that, under the PA Supreme Court’s recent ruling in PDEF II, [3] the Township had an affirmative duty to prevent environmental degradation within its boundaries.  The gas company argued that the property, as private land, was not part of the corpus of the public trust for which the Commonwealth (and its municipalities) acts as trustee.

In reaching its decision, the Commonwealth Court emphasized that oil and gas operations provided for the “livelihood and way for life” for many property owners in the Township’s residential and agricultural districts. [4] The court found that the objector’s “affirmative duty” argument would create regulations duplicative of existing laws in the Commonwealth. Therefore, objectors’ concerns for the potential harm to the environment would have been properly addressed with the state agency that (DEP) issued the operating permit to the gas company.

In the end, the Commonwealth Court concluded that it must “presume that the Township’s Board of Supervisors ‘investigated the question and ascertained what is best for…the good of the people’” when it enacted the ordinance.[5]  Further, “that oil and gas drilling is authorized in every zoning district in the Township does not mean that it will take place everywhere.” The court noted that the setback provisions set forth in the Oil and Gas Act remain in effect.  To this end, the court held that where a zoning ordinance regulates where oil and gas drilling is to take place, and not how it is to take place, the regulation will be upheld unless it is clearly arbitrary or unreasonable.

The two dissenting opinions from Judges McCullough and Ceisler are strongly worded and set the stage for the Supreme Court to potentially accept this case. For now, municipalities should carefully review the Allegheny Township decision but be on the lookout to see what the Supreme Court does with this case.

For more information about zoning, municipal or oil and gas laws, please contact Alan T. Shuckrow at ashuckrow@smgglaw.com or Alexis M. Wheeler at awheeler@smgglaw.com  or at (412) 281-5423.

[1] — A.3d —-, 2018 WL 5303462 (Pa. Commw. Ct. 2018).

[2] 83 A.3d 901 (Pa. 2013).

[3] 161 A.3d 911 (Pa. 2017).

[4] The court cited Robinson Township II for the proposition that “development promoting the economic well-being of the citizenry obviously is a legitimate state interest.”

[5] Citing Khan v. State Board of Auctioneer Examiners, 842 A.2d 936, 947 (Pa. 2004).