Failure to Enforce Ordinance Does Not Make It Unenforceable

From time to time I am asked by a municipal client whether the municipality is required to grant a developer’s waiver request as part of a subdivision or land development application, since they previously granted such a waiver to another developer in the past. In other words – “since we didn’t enforce our ordinance in one situation, are we required to refrain from enforcing it in future situations?”

Fortunately, the answer is no. The PA Commonwealth Court confirmed this last year in the case of Zajdel v. Peters Township. In short, a developer was denied subdivision approval because the proposed lots would have fronted on a private street, which was prohibited by the subdivision ordinance. The developer appealed the denial of that waiver request on the basis that the township previously approved a subdivision involving lots that also fronted on the same private street.

The court said that the failure to enforce an ordinance uniformly does not preclude subsequent enforcement of the same. This does NOT mean that municipalities should feel free to enforce their ordinances in a non-uniform manner. But at the same time, it should encourage municipalities to start enforcing ordinances that they had failed to enforce, without fear that the prior “weaknesses” will impair their ability to start enforcing the ordinance uniformly.

Short story: enforce your ordinances uniformly, but take some comfort in the knowledge that those hopefully rare instances in which you do not enforce an ordinance will not set a binding precedent that you do not want to set.


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