Naylor v. Township of Hellam

NEWMAN, Justice,

dissenting.

Because I believe that the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as reenacted and amended, 53 P.S. §§ 10101-11202, does grant a municipality the power to enact a temporary moratorium on certain types of subdivision and land development while the municipality revises its zoning and subdivision land development ordinances, I respectfully dissent.

As the Majority points out, the stated purpose of the MPC is very broad. Section 105 defines the purpose of the act:

It is the intent, purpose and scope of this act to protect and promote safety, health and morals; to accomplish coordinated development; to provide for the general welfare by guiding and protecting ... development and growth!;] • • • to guide uses of land and structures, type and location of streets, public grounds and other facilities; to promote the conservation of energy!;] ... and to permit municipalities to minimize such problems as may presently exist or which may be foreseen.

53 P.S. § 10105. To achieve this stated purpose, the MPC grants municipalities the authority to, among other things, prepare and adopt a comprehensive development plan,1 regulate subdivision and land development by enacting subdivision and land development ordinances,2 regulate land use, structure use, population density and activities by enacting zoning ordinances,3 and enact such zoning ordinance provisions as may be necessary to effectuate the purposes of the MPC.4

*411I dissent from the Majority, and agree with the decisions of the trial court and Commonwealth Court because I believe that “implicit in or incidental to the broad powers expressly conferred upon municipalities is the authority to impose moratoria on development while land use regulations are in the process of being revisited.” Naylor v. Township of Hellam, 717 A.2d 629, 633 (Pa.Cmwith.1998). Section 503(2)(i) authorizes the Hellam Township Board of Supervisors (Board) to adopt provisions for insuring that “the layout or arrangement of the subdivision or land development shall conform” to the Board’s comprehensive plan. 53 P.S. § 10503(2)(i). The trial court aptly stated, “[a] logical means of ensuring that subdivision and development conform with a municipality’s comprehensive plan during such time as an existing comprehensive plan and subdivision and land development ordinance are being revised and enacted would be to maintain the status quo by enacting a moratorium on subdivision and development.” Trial Court Op., p. 10.

It is clearly the responsibility of the Board to monitor community growth and to provide adequate public necessities, such as transportation, water, sewage, schools and parks. In 1990, the Board noticed that development patterns in the township were changing and that the public sewage system could no longer service additional residences. In response, the Board began developing a new comprehensive plan. After the Board invested five years to research and develop this new comprehensive plan, the pace of subdivision and development within the township escalated dramatically. The Board knew that once they announced a new proposed comprehensive plan that substantially altered the existing plan, landowners and developers would flood the Board with applications for subdivision and development pursuant to the existing plan. Recognizing that the proposed comprehensive plan would soon be obsolete, the Board invoked the only tool that would allow them to enact such a plan as they are authorized to do under the MPC. The Board imposed a temporary moratorium on subdivision and development that was nondiscriminatory, lim*412ited in duration, and enacted in good faith.5

As the Majority concedes, the MPC must be liberally construed in order to effectuate its purpose, Middletown v. Abel, 7 Pa.Cmwlth. 6, 297 A.2d 525 (1972), and we must presume that the legislature intended to favor the public interest as against any private interest. 1 Pa.C.S. § 1922(5). The objectives underlying the use of temporary moratoria are consistent with the purposes of the MPC.6 A moratorium allows the municipality time in which to create a new comprehensive plan. Until the new plan is enacted, no development is allowed, thereby insuring that development is consistent with the new plan. The California Supreme Court stated in a landmark temporary moratorium case:

It is a matter of common knowledge that a zoning plan of the extent contemplated in the instant case cannot be made in a day; therefore we may take judicial notice of the fact that it will take much time to work out the details of such a plan and that obviously it would be destructive of the plan if, during the period of its incubation, parties seeking to evade the operation thereof should be permitted to enter upon a course of construction which might progress so far as to defeat in whole or in part the ultimate execution of the plan.

Miller v. Board of Public Works of City of Los Angeles, 195 Cal. 477, 234 P. 381 (1925), app. dism., 273 U.S. 781, 47 S.Ct. 460, 71 L.Ed. 889 (1927). Temporary moratoria allow the *413municipality to preserve the status quo while the municipality develops and adopts its new comprehensive plan. “Maintaining the status quo serves to protect and promote the health and welfare of the municipality’s citizens by ensuring that proposed development conforms to rather than defeats the revised plans and regulations and by preventing further uncoordinated or hazardous development stemming from the regulations in effect prior to the moratorium.” Naylor, 717 A.2d at 633. Temporary moratoria also ensure that residents and landowners will have the opportunity to voice their opinions regarding the proposed comprehensive plan.

The orderly process of interim zoning allows the issues to have the benefit of full public debate, at the same time protecting the affected area from unwise exploitation prior to agreement and formulation of new zoning restrictions which may apply. [T]he landowner whose property is subject to the interim provision in this case is no worse off than if the town had simply rezoned the area to exclude apartment buildings in the traditional manner, with the intent of again amending the by-law in two years to reflect a new comprehensive plan. At the least, with the adoption of an interim provision he is made aware that a new plan is in the offing and is thus able to participate in the debate over what the new plan should contain.

Collura v. Town of Arlington, 367 Mass. 881, 329 N.E.2d 733, 737 (1975). Without the authority to invoke moratoria, municipalities have an exceptionally heavy task in drafting and implementing comprehensive plans amidst the urban sprawl and shortages of facilities. I do not believe the legislature intended to place such a burden on municipalities and their planning boards. The Majority’s narrow interpretation of the MPC is unsubstantiated by the MPC’s broad purpose and, “if enforced, would serve to hinder or reduce governing bodies’ ability to effectuate the express purposes of the act, such as coordinated growth, development which follows the comprehensive plan, and proactive problem solving.” Naylor, 717 A.2d at 633.

While several jurisdictions have articulated reasons for and approved uses of temporary moratoria, few have addressed *414the “proper safeguards” these moratoria must contain.7 Both the trial court and the Commonwealth Court in this case examined the constitutionality of the Board’s temporary moratorium. The Commonwealth Court determined that the temporary moratorium was reasonably limited in time and narrowly tailored to prohibit only so much development as necessary to effectuate its purpose. Naylor, 717 A.2d at 635. Because I reason that the MPC implicitly or inherently permits municipalities to invoke temporary moratoria, I believe it is the role of this Court to create and install proper safeguards.

The MPC authorizes the use of temporary moratoria so long as they are enacted in good faith, limited in duration, and nondiscriminatory. The question of whether temporary moratoria were enacted in good faith is a question of fact and courts should focus on the stated purpose for invoking the planning tool. See Dills v. City of Marietta, 674 F.2d 1377 (11th Cir.1982). Necessity of duration should be evaluated on a case-by-case basis, and the time should be measured by the scope of the problem being resolved. See Smoke Rise, Inc. v. Washington Suburban Sanitary Commission, 400 F.Supp. 1369 (D.Md.1975). Municipalities should justify why an extension beyond the original life of the moratoria is needed. Courts in other jurisdictions have approved moratoria lasting one year,8 eighteen months,9 two years,10 and four years.11 *415Temporary moratoria will be nondiscriminatory when enacted in response to a necessity or when the local governing body can demonstrate that the ordinance serves the public health, safety, morals, aesthetics, or welfare, and is rationally related to the alleged permissible governmental objective. Schafer v. City of New Orleans, 743 F.2d 1086 (5th Cir.1984).

The temporary moratorium enacted by the Board in this case was limited in duration, enacted in good faith, and nondiscriminatory. The moratorium was enacted on July 20, 1995 and expired by its own terms on July 25, 1996. While the Board did extend the life of the moratorium by two months on August 1, 1996, the new comprehensive plan became effective September 5,1996. Considering the Board was attempting to make a substantial modification to the subdivision and development ordinance, I believe that thirteen months is a reasonably limited time to impose this moratorium. The Board acted in good faith in enacting the moratorium. The Board noted that it was in the interest of the public to prevent the purpose of the revised comprehensive plan from being defeated via continued development and subdivision. In addition, the moratorium served to ensure adequate public sewer capacity and to promote sanitary sewage disposal. Finally, there is no evidence that the moratorium is discriminatory. Development and subdivision currently serviceable by the existing public sewer system were not subject to the temporary ordinance.

The Majority contends that “[t]he practical effect of the enactment of the moratorium was to suspend the existing zoning ordinances applicable to subdivision approval until the revised ordinances became effective.” Majority Opinion, 565 Pa. at p. 405, 773 A.2d at p. 775. The Majority continues by stating that the power to enact a zoning ordinance is distinct from the power to suspend an ordinance, and that the latter cannot be implicitly authorized under the MPC. I disagree. The ordinance affected by the moratorium was not suspended. Rather, it is as if the municipality had rezoned the area to exclude residential building in the traditional manner, with the intent of again amending the ordinance in thirteen months to *416reflect the new comprehensive plan. See Collura, 329 N.E.2d at 737. Under such a procedure, the landowner is in the same position as if the ordinance was subject to a municipality-issued moratorium.

The Majority relies on two eases, Kline v. Harrisburg, 362 Pa. 438, 68 A.2d 182 (1949) and Boron Oil Co. v. Kimple, 445 Pa. 327, 284 A.2d 744 (1971), for the proposition that “the power to ‘halt’ development is not an extension of or incidental to any power to regulate land use or development.” Majority Opinion, 565 Pa. at p. 408, 773 A.2d at p. 777. In this case, we have been asked to focus on the text of the MPC and determine whether the MPC implicitly authorizes municipalities to impose temporary moratoria on subdivision and development. I fail to see the relevance of citing two cases that do not interpret provisions of the MPC.12 Kline has made clear that the Third Class City Law did not imply such authority. The two cases the Majority references do not attempt to do what we do today, interpret the text of the MPC and ascertain the intent of the legislature to determine whether township planning boards may use temporary moratoria to accomplish coordinated development and promote the safety of its residents via up-to-date comprehensive plans.

Finally, the Board in the instant case argues that if it does not possess the implied or inherent power to enact a temporary moratorium suspending subdivision and development, developers and landowners will expedite the filing of their applications to gain approval before the enactment of the new comprehensive plan. In response, the Majority cites to Kline, *417which stated, “although the argument is not entirely without merit, it is one which must be directed to the legislature and not to the courts. If the legislature wishes to authorize the enactment of a “temporary” or “interim” ordinance to maintain the status quo it can so provide by legislation[.]” Majority Opinion, 565 Pa. at p. 406, 773 A.2d at pp. 775-76 citing Kline, 68 A.2d at 189. The legislature responded to our call by creating and enacting the MPC, not only authorizing municipalities to create and adopt a comprehensive plan and regulate subdivision and land development, but also granting them the necessary tools to carry out such objectives. Because I believe that a temporary moratorium is one such tool, I respectfully dissent.

. 53 P.S. §§ 10301, 10302.

. 53 P.S. §§ 10501, 10503.

. 53 P.S. §§ 10601, 10603.

. 53 P.S. §§ 10601, 10603.

. Other jurisdictions that have approved the use of moratoria have done so on the grounds that moratoria contain similar constraints. See Arnold Bernhard and Co., Inc. v. Planning and Zoning Commission of Westport, 194 Conn. 152, 479 A.2d 801 (1984); Almquist v. Town of Marshan, 308 Minn. 52, 245 N.W.2d 819 (1976).

. Other states have found, without relying on specific statutory authorization, that the power to enact moratoria and other interim zoning devices is within the scope of general zoning enabling acts. See A. Copeland Enterprises, Inc. v. New Orleans, 372 So.2d 764 (La.Ct.App. 1979); Collura v. Town of Arlington, 367 Mass. 881, 329 N.E.2d 733 (1975); Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 87 A.2d 9 (N.J.1952); Lebanon v. Woods, 153 Conn. 182, 215 A.2d 112 (1965); Rubin v. McAlevey, 54 Misc.2d 338, 282 N.Y.S.2d 564 (N.Y.Sup.Ct. 1967), aff'd, 29 A.D.2d 874, 288 N.Y.S.2d 519 (N.Y.App.Div.1968); Gayland v. Salt Lake County, 11 Utah 2d 307, 358 P.2d 633 (1961); Walworth County v. Elkhorn, 27 Wis.2d 30, 133 N.W.2d 257 (1965).

. The Minnesota Supreme Court has previously identified five safeguards that must accompany every temporary moratorium. Almquist v. Town of Marshan, 308 Minn. 52, 245 N.W.2d 819 (1976). The moratorium must be nondiscriminatory, enacted in good faith, limited in duration, appropriate to tire development of a comprehensive plan, and the municipality must act promptly to develop the comprehensive plan. Id. at 826.

. Schafer v. City of New Orleans, 743 F.2d 1086 (5th Cir.1984).

. Golden v. Planning Board of Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291 (1972), app. dism., 409 U.S. 1003, 93 S.Ct. 436, 34 L.Ed.2d 294 (1972).

. Collura v. Town of Arlington, 367 Mass. 881, 329 N.E.2d 733 (1975).

. Cappture Realty Corp. v. Board of Adjustment, 126 N.J.Super. 200, 313 A.2d 624 (Law Div.1973), aff'd, 133 N.J.Super. 216, 336 A.2d 30 (App.Div.1973).

. I do find it relevant that both Kline and Boron Oil were published prior to the enactment of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501-1991, which requires us to construe statutes liberally to give effect to their purpose and to promote justice.

I find it particularly relevant considering, "[c]ourts have construed municipal enabling statutes both strictly and liberally. A strict construction, limiting municipal power to its express provisions, favors the individual landowner. A liberal construction, making it easier to imply a power not expressly made, favors the municipality.” Hostettler, Naylor v. Township of Hellam: The Validity of Moratoria on Land Development Under the Pennsylvania Constitution, 8 Widener J. Pub.L. 733, 738 (1999).