Selective Enforcement Ruled Okay

The Pennsylvania Commonwealth Court recently examined the effect of a municipality's prior decisions on requests for subdivision approval. The case is Zajdel v. Board of Supervisors of Peters Township,925 A.2d 215 (Pa. Cmwlth. 2007). In this case, the landowners filed an application with the township planning commission to subdivide their property and create two additional lots. The ordinance required lots to have direct access to a public road or to a private road that meets township specifications. In this case, the landowners sought a waiver because the additional lots would be accessed by a private road that didn't meet those requirements. The planning commission recommended denial of the request and the board of supervisors denied the landowner request for a waiver because the proposed new lots would be on a substandard private road.

The owner appealed to the trial court which affirmed the township's denial. The landowner argued to the trial court that the township had granted subdivision approval to a neighbor on the same substandard road. They further argued that the township had an unwritten policy of granting subdivsion approval on a private road where the applicant intended to convey a lot to a family member but denying approval when the lot would be conveyed to a non-family member.

The Commonwealth Court held that even if the township had such a policy "a failure to uniformly enforce an ordinance provision does not preclude the subsequent enforcement of the same." Moreover, the Court stated "the validity of the ordinance does not usually depend on a completely successful enforcement of its provisions, nor can one who violates it be discharged merely because it is shown that there are other violatiors who have not been convicted, or that those whose duty it is to perform the duties required by it have fallen short, through inattention or intentional omission or neglect."

Obviously, municipalities should apply their ordinances fairly to all applicants. However, the Zajdel case makes it clear that minor departures do not create precedent or unwritten "policy" that would entitle future applicants to some relief.