In a recent case decided by the PA Commonwealth Court, titled Toll Brothers and Orleans Homebuilders v. Upper Uwchlan Township, the court upheld the decision of the Court of Common Pleas and the Board of Supervisors to deny the developer’s request to amend a previously granted conditional use approval to eliminate a condition requiring developer to construct an internal roadway.  Developer presented testimony as to reasons for this amendment, including the preservation of additional woodlands, wetlands, steep slopes and floodplains.  However, developer acknowledged that the elimination of this roadway would save an estimated $730,000 in site costs.  At the underlying hearing, residents who had purchased homes in the community requested party status and objected to changing this condition.  These residents argued, among other things, that the road connection was needed and that developer represented it to them when they purchased their homes that this road connection would be constructed.

In its decision, the Commonwealth Court cited the Ford v. Caernarvon Township case, whereby a property owner requested to remove a deed restriction preventing further subdivision of their land that the ZHB had attached to its grant of a variance.  The court noted that an owner that wants to obtain a modification of a condition can obtain relief if they can establish the following:

1. Either grounds for a traditional variance or changed circumstances which render the condition inappropriate; and
2. Absence of injury to the public interest.

In the Ford case, the court concluded that the property owner demonstrated a clear change in circumstances to allow the removal of the deed restriction condition; because the newly created lots would conform to all ordinance requirements.  The court also found that the removal of the restriction would not result in a harm to the public.

Unfortunately, in the Toll/Orleans case, the court found that developer failed to identify any change in circumstances that would justify the elimination of the condition to build the extended roadway.  The court also found that developer failed to demonstrate that the elimination of the condition to extend the roadway would not harm the public interest.

This case is another lesson in a long line of cases for developers to carefully review any conditions imposed on the grant of their development approvals and, if not acceptable, to timely appeal the conditions to the Court of Common Pleas.

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