Can a Township Lay Conditions Regarding Traffic Restrictions Which Can Only Be Imposed Bt Dot to Approve a Site Plan ?
may municipality condition its approval of a land development plan on limitations regarding access to and traffic patterns on state highways where standards were not already contained in its land development regulations ?
In Bethel Park Minimall v. Borough of Bethel Park, 16 Pa. Commw. 97, 326 A.2d 670 (Pa. Cmwlth. 1974), our court ruled that the borough could not condition site plan approval on traffic restrictions that were solely within DOT's authority to impose.
In Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commw. 535, 422 A.2d 897 (Pa. Cmwlth. 1980), our court held that the township could not condition land development approval on a restriction requiring that all vehicles leaving the development by a particular road turn right because no provision regulating traffic was contained in their land development ordinance. Id. at 899.
Our court reaffirmed this principle in Ice v. Cross Roads Borough, 694 A.2d 401 (Pa. Cmwlth. 1997), stating that "if a municipality has no ordinances that in any way regulate access to roads within its boundaries, then DOT's permit alone would be enough to permit access to state highways.
However, if a municipality has ordinances regulating road access . . . then a landowner seeking access to a state highway must be given permission for this access by both governmental entities.
If either entity has a legitimate basis for denial, then the access cannot be granted." Id. at 404.
In Ice, the borough's ordinance provided that "subdivisions shall be designed to eliminate driveways, where possible, abutting state highway routes." Id. at 405.
Thus, because the borough had a subdivision ordinance specifically regulating road access, the court held that the borough could prohibit landowners from using their driveway in violation of that ordinance, even though they had a valid DOT permit. Id. at 404. See also Shelbourne Square Assocs., L.P., v. Bd. of Supervisors of Twp. of Exeter, 794 A.2d 946 (Pa. Cmwlth. 2002) (holding that where subdivision ordinance proscribed access to arterial or collector streets, township could deny approval of a plan proposing such access, even though developer had obtained a highway permit from DOT to access the arterial street).
However, these cases have no application in the present case, which does not concern control over traffic movements onto or within the state highway right of way.
The Township and DOT concur that access to the Kessler property shall be via driveways onto Route 209.
The present case concerns the Township's authority to insist, where DOT does not, on completion of the improvements to the roadway prior to allowing the Kesslers to open for business.