Those who utilize planned community and condominium frameworks without addressing the potential need for subdivision approval should reconsider. The Commonwealth Court of Pennsylvania recently held in Frank N. Shaffer Limited Partnership v. Zoning Hearing Board of Chanceford Township, 2008 WL 5501069 (Pa. Cmwlth.) that planned communities are subject to local subdivision ordinances and implied that condominium projects are as well. The landowner has petitioned the Pennsylvania Supreme Court for allowance of appeal.  For now, however, developers should investigate the local municipality's position on how its subdivision requirements apply to their projects.

Before this decision, most lawyers would have said that projects submitted to the Pennsylvania Uniform Planned Community and Condominium Acts are subject to land development requirements, but not subdivision requirements. However, the court upheld the enforcement notice that Chanceford Township issued against a landowner who created a planned community for failing to submit a land development plan and for an illegal subdivision.

In Shaffer, a partnership owned 25 acres of vacant land, upon which it built a single-family home, pursuant to zoning and construction permits. Subsequently, the partnership submitted the property to the provisions of the Pennsylvania Uniform Planned Community Act, 68 Pa. C.S.A §5101 et seq. (UPCA), and created a planned community with two units and a common area. The partnership then conveyed one of the units. The township issued an enforcement notice because the partnership had neither submitted a land development plan, nor sought subdivision approval before creating the units, in violation of the township’s Subdivision and Land Development Ordinance. 

The court rejected the partnership's arguments that a "unit" created under the UPCA constitutes a form of real estate that exists solely through the UPCA and that the creation of each unit as a separate legal parcel is governed by the UPCA, not by local subdivision requirements. The court held that dividing one parcel into two units and a common area through creation of a planned community and subsequently conveying a unit did, in fact, constitute a subdivision and land development. 

The Chanceford Township Zoning Hearing Board's view of planned communities may be based on the fact that they often appear indistinguishable from conventional residential communities, with detached single-family homes on large lots. The only difference may be some common facility owned by the community association, the costs of which are borne by the homeowners, which subjects the development to the UPCA.  

A board or court might well believe that a property owner should not be able to avoid subdivision requirements merely by developing a project as a planned community under the UPCA. Indeed, the board argued that there was no conflict between Section 5106 of the UPCA and Section 107 of the Municipalities Planning Code (MPC), relating to the definition of "Land Development" as, inter alia, "a subdivision of land," and that the UPCA shows no legislative intent to preempt or supersede the MPC. 

The decision raises the possibility that condominiums, which are more likely to be garden apartments, townhouses, or high-rises, might also be subject to subdivision requirements. The partnership looked to the Uniform Condominium Act, 68 Pa. C.S.A §3101 et seq. (UCA), and cases decided under it for support. The provisions of the UPCA and the UCA are nearly identical, but the court’s decision did not distinguish between them, thereby implying that condominium projects might also be subject to local subdivision ordinances.  Imposing subdivision requirements on buildings such as high-rises and garden apartments, with provisions governing criteria including setbacks and yards, simply makes no sense. The court did not analyze Section 3106 of the UCA and did not address the differences in the language of the statutes that might support the conclusion that condominiums are not subject to subdivision requirements. 

If you have questions about how this ruling might affect your project, please contact Eileen Quigley (215.864.8720 or or any other attorney in Ballard's Real Estate Department.

Copyright © 2009 by Ballard Spahr LLP.
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