Delchester Developers, L.P. v. ZHB of the Twp. of London Grove

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delchester Developers, L.P., :
Appellant :
:
v. : Nos. 86 C.D. 2016 and 87 C.D. 2016
: Argued: October 17, 2016
Zoning Hearing Board of the :
Township of London Grove and :
London Grove Township and :
Dominic DiFilippo, Ricco DiFilippo, :
and Lynn Soliwoda-DiFilippo :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: May 9, 2017
Before this Court are the consolidated appeals of Delchester
Developers, L.P. (Delchester) of the December 18, 2015 order and the January 4,
2016 amended order of the Court of Common Pleas of Chester County (Trial
Court) affirming the June 27, 2014 decision and order of the London Grove
Township Zoning Hearing Board (ZHB) that denied Delchester zoning relief. For
the following reasons, we affirm the order of the Trial Court.1
1
Where the trial court has taken no additional evidence, appellate review is limited to
determining whether the zoning hearing board committed an error of law or a manifest abuse of
discretion. Hertzberg v. Zoning Board of Adjustment, 721 A.2d 43, 46 (Pa. 2004). An abuse of
discretion will be found only where the zoning hearing board’s findings are not supported by
substantial evidence. Id. Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id.Delchester sought zoning relief for two lots located within the
Township’s Groundwater Protection District overlaying the Cockeysville Marble
area. (ZHB Decision, Findings of Fact (F.F.) ¶37.) The Cockeysville Marble area
is a geologic formation that allows water to move through it very quickly and is
recognized to be under threat, which led to the adoption of stringent standards
regulating stormwater runoff infiltration by the governing body. (Id., F.F. ¶¶35-
36.) In recognition of the challenges posed by the Cockeysville Marble area, the
Groundwater Protection District was enacted as an overlay district within which
“special stormwater management measures are to be taken to ensure recharge, to
prevent sinkhole formation, and to protect the groundwater from contamination.”
(London Grove Township Zoning Ordinance (ZO) § 27-1301; Id., F.F. ¶¶38-39.)
In addition to being within the Groundwater Protection District overlay,
Delchester’s two lots are within two separate underlying zoning districts; one of
Delchester’s lots spans 2.58 acres in the Commercial-Interchange District (CI
District), and the second lot spans 0.89 acres in the Industrial District. (ZHB
Decision, F.F. ¶¶2-4.) The two lots have frontage on Old Baltimore Pike, where
they are separated by a third parcel unrelated to the proposed development;
however, the two lots are adjacent at the rear of the third parcel, forming
essentially an irregular shaped horseshoe around the unrelated third parcel. (Id.
F.F. ¶¶2, 5, 7.)
Delchester submitted a preliminary plan application (Plan) to develop
the two lots with a drive-thru bank, a restaurant and attendant parking and access
points. (Id. F.F. ¶¶6, 7.) The Plan does not propose merger of the two lots and
instead seeks to develop the lots separately. (Id. F.F. ¶¶24, 83.) Due to the CI lot’s
limited frontage on Old Baltimore Pike, which prevents more than one vehicle
2
access point from Old Baltimore Pike onto the lot within the CI District, the Plan
proposed an additional vehicle access point and drive on the lot within the
Industrial District that would allow vehicle traffic access from the lot within the
Industrial District to the parking area located on the CI lot. (Id., F.F. ¶¶7, 25.) The
Township of London Grove’s (Township) Zoning Ordinance (ZO) does not require
an access point in addition to the proposed driveway providing access onto the CI
lot from Old Baltimore Pike. (Id., F.F. ¶75.) The Plan does not propose any
additional current improvements to the lot within the Industrial District. (Id., F.F.
¶7.) In order to execute its Plan, Delchester sought several variances and special
exceptions from the ZHB, and brought challenges to the validity of several
provisions of the applicable ordinances, including the ZO, and interpretations of
ZO provisions as applied to the lots. Prior to the instant matter, the ZHB issued a
2008 decision, which was not appealed, denying Delchester’s request for a special
exception to locate an internal access drive crossing the Industrial lot and granting
Delchester’s request for a variance permitting the CI lot to exceed the maximum
impervious surface area by two percent and to provide two percent less than the
required open space. (Id., F.F. ¶¶9-11.)
In the instant matter, the ZHB denied Delchester the relief it sought
with a June 27, 2014 decision consisting of 88 findings of fact, 31 conclusions of
law, and a lengthy discussion of its reasoning. Delchester appealed the ZHB’s
decision to the Trial Court. The Trial Court did not take additional evidence and
instead relied upon the findings of fact and credibility determinations made by the
ZHB. In a lengthy and thorough opinion ably crafted by the Honorable William P.
Mahon, the Trial Court affirmed the ZHB.
3
On appeal, Delchester raises the following issues for review: (i)
whether the Trial Court erred in concluding that the ZHB lacked jurisdiction to
decide Delchester’s substantive validity challenge to the Township’s Stormwater
Management Ordinance (SWMO); (ii) whether the Trial Court erred in concluding
that the “net out” provision in the ZO is valid; (iii) whether the Trial Court erred in
concluding that the word “site” as used in the ZO is synonymous with the word
“lot” as that term is defined in the ZO; and (iv) whether the Trial Court erred in
concluding that the proposed driveway accessing the Industrial lot is an “internal
access drive” as that term is defined in the ZO. Delchester has not challenged any
of the findings of fact made by the ZHB that were relied upon by the Trial Court,
instead framing the issues for appellate review as pure questions of law.
I.
The first issue raised by Delchester concerns the jurisdiction of the
ZHB to determine the validity of a challenge to the Township’s SWMO.
Delchester argues that the SWMO is a land use ordinance and, therefore, the Trial
Court erred when it affirmed the ZHB’s determination that it did not have
jurisdiction to hear Delchester’s challenge to the SWMO.
All local jurisdictions are required to comply with the Municipalities
Planning Code2 (MPC) when enacting land use ordinances within their
jurisdictions. While the MPC provides local jurisdictions with authority to enact
many substantive provisions in their land use ordinances specific to their
community, the MPC contains significant procedural mandates to provide a unified
framework throughout the Commonwealth within which local government actors
and private property owners can execute planning and development decisions and
2
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.
4
resolve problems or conflicts that may arise during the development process. As a
part of this procedural framework, Section 909.1(a)(1) of the MPC3 provides the
ZHB with jurisdiction to hear substantive validity challenges to land use
ordinances. 53 P.S. § 10909.1(a)(1). Pursuant to the MPC, therefore, the ZHB’s
jurisdiction to hear a challenge to the substantive validity of a local ordinance turns
upon whether that ordinance is a “land use ordinance.”
In the instant matter, Delchester argues that the SWMO is a land use
ordinance because the SWMO regulates the size, height and location of stormwater
facilities constructed as a part of development and because compliance with the
SWMO is required for land development approval in the Township. The
Township contends that the SWMO regulates activity rather than use and that the
purpose of the SWMO is to regulate stormwater and minimize water pollution.
The Township argues that the SWMO is not a land use ordinance as that term is
defined in Section 107 of the MPC and, therefore, pursuant to Section 1601(f) of
the Second Class Township Code (Code)4, Delchester must bring any challenge to
the substantive validity of the SWMO in the court of common pleas. 53 P.S. §
10107; 53 P.S. § 66601(f).
Section 107 of the MPC defines “land use ordinance” as “any
ordinance or map adopted pursuant to the authority granted in Articles IV, V, VI
and VII.” 53 P.S. § 10107. Article IV of the MPC provides for the adoption of
official maps, Article V provides for the adoption of subdivision and land
3
Added by the Act of December 21, 1988, P.L. 1329, as amended by the Act of July 4, 2008,
P.L. 319.
4
Act of May 1, 1922, P.L. 103, as amended, 53 P.S. §§ 65101-68701. Section 1601(f) of the
Second Class Township Code provides “Any person aggrieved by the adoption of any ordinance
may make complaint as to the legality of the ordinance to the court of common pleas.” 53 P.S. §
66601(f).
5
development ordinances (SALDOs), Article VI provides for the adoption of zoning
ordinances and maps, and Article VII provides for the adoption of ordinances
regulating the development of Planned Residential Developments (PRD). 53 P.S.
§§ 10401-10408, 10501-10516, 10601-10621, 10701-10713.
Section 103 of the Township’s SWMO sets forth the statutory
authority for the SWMO and provides:
In the enactment of this Ordinance, it is the legislative
intent of the Board of Supervisors to implement the
policies set forth in various statutes of the state and
federal governments, including but not limited to the
Pennsylvania Clean Streams Law, Act of June 22,
1937, P.L. 1987, as amended, 35 P.S. Section 691.1, et
seq.; the Pennsylvania Storm Water Management Act,
Act of October 4, 1978, P.L. 864, No. 167, as amended,
32 P.S. Section 680.1 et seq.; Chapter 93, Water Quality
Standards, Title 25, Rules and Regulations, Part I,
Department of Environmental Resources, Sub-Part C,
Protection of Natural Resources, Article II – Water
Resources; Chapter 102 Regulations and Authorities
under the Clean Streams Law, 35 P.S. Section 691.20
et seq.; and the Federal Water Pollution Control Act,
commonly known as the Clean Water Act, 33 U.S.C.
Section 1251 et seq.
(SWMO § 20-103 (emphasis added).) Delchester contends that the language
“including but not limited to” demonstrates that the Board of Supervisors did not
intend the statutory authority identified in this provision of the SWMO to be
exclusive.5 The MPC is not listed as providing statutory authority for the Board of
Supervisors’s enactment of the SWMO. However, neither the absence of the MPC
5
Delchester also notes that the Board has now amended the SWMO to cite the MPC as
providing statutory authority for the SWMO although the amendment was not applicable when
Delchester sought zoning relief.
6
in the list of statutory authority nor the inclusion of the language “including but not
limited to” is determinative, as “the stated intent of a municipality is not
controlling with respect to the question of whether the substance of an ordinance
renders it a zoning ordinance.” Land Acquisition Services, Inc. v. Clarion County
Board of Commissioners, 605 A.2d 465, 469 (Pa. Cmwlth. 1992).
In Land Acquisition Services, this Court examined whether a
hazardous waste ordinance was a “land use ordinance” within the meaning of, and
therefore subject to, the MPC, and held that “[b]ecause the ordinance at issue here
has as its primary objective the regulation of hazardous waste disposal activity, and
because the terms of the ordinance go no further than the ‘scope of that goal,’ our
conclusion is that the ordinance is not a zoning regulation.” Id. at 470. In reaching
its holding, this Court reasoned in Land Acquisition that while different types of
ordinances may utilize land use tools, such as setbacks, the exclusive hallmark of
land use ordinances are provisions that have as their primary purpose the
regulation of land pursuant to the powers granted by Articles IV-VII of the MPC,
stating “setbacks are not exclusively hallmarks of zoning. The distinctive
characteristic of zoning involves zones.” Id. at 470 (internal quotation omitted);
see also Taylor v. Harmony Township Board of Supervisors, 851 A.2d 1020, 1026
(Pa. Cmwlth. 2004) (the MPC did not apply to ordinance regulating logging and
timber, the primary purpose of which was to regulate timber harvesting in slide-
prone and flood-prone areas); IA Construction Corporation v. Township of
Bradford, Clearfield County, 598 A.2d 1347, 1351 (Pa. Cmwlth. 1991) (ordinance
regulating solid waste activity was not a zoning ordinance).
The analysis held controlling in Land Acquisition is equally applicable
to Delchester’s substantive validity challenge to the SWMO. In determining
7
whether a local ordinance is a “land use ordinance” within the meaning of the
MPC and, therefore, subject to the procedural framework mandated by the MPC,
we must look first at the purpose of the SWMO and then examine whether the
SWMO stays within the limits to which that purpose extends or goes beyond its
scope.
The purpose of the SWMO is to regulate stormwater traveling through
and within the Township. As the Pennsylvania Storm Water Management Act
makes clear, it is impossible to regulate the movement of water without also
regulating the disturbance of earth. See 32 P.S. §§ 680.11, 680.13. It necessarily
follows that the Township’s SWMO contains provisions addressing both the
natural and the built environment; conversely, the Township’s SALDO and ZO
contain provisions addressing the movement of water and the impact of the built
environment on the natural environment. These shared concerns do not render the
SWMO a land use ordinance within the meaning of the MPC. The Township’s
SWMO is not an official map. The Township’s SWMO does not divide all the
land within the municipality into zones or regulate specific uses permitted within
each zone like a zoning ordinance. Likewise, the Township’s SWMO does not
provide for the division and redivision of a lot and the location and bulk of
structures constructed within those lots like a SALDO. Nor does the SWMO
provide for an area of land to be developed as a single large scale entity in
accordance with a plan intended to supersede the underlying zoning like a PRD
ordinance.
What the SWMO does do is utilize some of the same techniques as
land use ordinances as that term is defined by Section 107 of the MPC to achieve
its goal of regulating stormwater. For example, like a land use ordinance, the
8
Township’s SWMO regulates the size, height, and location of stormwater facilities
and details instances where setbacks or buffers are required. However, the fact that
the Township’s SWMO utilizes a set of tools also found at work in ZOs and
SALDOs does not make all three types of ordinances land use ordinances any more
than a socket wrench used by both a mechanic and a plumber means that they are
engaged in the same trade. The primary purpose of the Township’s SWMO is not
the regulation of land pursuant to the powers granted by Articles IV-VII of the
MPC. The primary purpose of the Township’s SWMO is the regulation of
stormwater and the tools it uses to do so does not carry the SWMO beyond the
scope of that goal. As we held in Land Acquisition, the use of regulatory tools
utilized in land use ordinances does not bring an ordinance addressing a wholly
different purpose into conflict with the MPC. Accordingly, the MPC does not
provide the ZHB with jurisdiction to hear a substantive validity challenge to the
Township’s SWMO; the Township’s SWMO does not traverse beyond the scope
of its goal of regulating stormwater to intrude into territory demarcated by Section
107 of the MPC as the exclusive province of land use ordinances. Therefore,
pursuant to Section 1601(f) of the Code, any challenge to the validity of the
SWMO must be made in an original action in the court of common pleas. 53 P.S.
§ 10107; 53 P.S. § 66601(f).
II.
Next, Delchester argues that the Trial Court erred in concluding that
the “net out” provision in the Township’s ZO is valid.6 The ZO defines “lot area,
net,” as follows:
6
Although Delchester also sought a validity variance below, Delchester has limited the issue
before this Court to whether the “net out” provision survives constitutional scrutiny and has not
sought to demonstrate that it has satisfied the criteria for a validity variance. In Nowicki v.
9
Zoning Hearing Board of the Borough of Monaca, 91 A.3d 287 (Pa. Cmwlth. 2014), we
reviewed the law applicable to a validity variance, stating:
A variance “where an unnecessary hardship is shown because of
the confiscatory nature of a zoning ordinance is often referred to as
a ‘validity variance.’” Laurel Point Associates v. Susquehanna
Township Zoning Hearing Board, 887 A.2d 796, 801 (Pa. Cmwlth.
2005) (“in a ‘validity variance’ case, the key is the actuality of
confiscation, and confiscation is the unnecessary hardship.”). The
term “validity variance” is a misnomer in that it implies that this
subset of variances is separate and apart or requires a showing
different than that required for granting a “normal” variance.
However, whether an applicant terms the variance sought as a
“validity variance” or not, like all other variances, it will only be
granted where an unnecessary hardship is demonstrated and the
relevant criteria from Section 910.2 of the MPC[, added by the Act
of December 21, 2988, P.L. 1329, 53 P.S. § 10910.2] has been
satisfied. Hunt v. Zoning Hearing Board of Conewago Township,
61 A.3d 380, 384 (Pa. Cmwlth. 2013). The only distinction with a
difference among variances, be it use, dimensional or validity, is
the criteria from Section 910.2 of the MPC that is considered
relevant. Hertzberg....This Court has held that, at a minimum, an
applicant for a variance due to the confiscatory nature of the
ordinance is required to show that: (1) the effect of the regulations
complained of is unique to the property and not merely a difficulty
common to other lands in the neighborhood; and (2) the regulation
is confiscatory in that it deprives the owner of the use of the
property. Hoffman Mining Company, Inc. v. Zoning Hearing
Board of Adams Township, 958 A.2d 602, 612 (Pa. Cmwlth.
2008). This burden is the burden required under Subsections (1)
and (2) of Section 910.2 of the MPC, albeit with the necessary
modification that it is the unique effect of the regulation on the
property, rather than the unique physical conditions, which creates
the unnecessary hardship, or confiscation, and that a variance is
needed to allow a reasonable use of the land, or to avoid
confiscation.
Nowicki, 91 A.3d at 293-294. Rather than argue that it has demonstrated the criteria applicable
under Section 910.2 of the MPC, Delchester has made a generalized constitutional argument that
it has been denied substantive due process. While the analysis of whether a validity variance
should be granted and whether an ordinance violates a property owner’s substantive due process
rights are similar and must be raised before the zoning hearing board in the first instance, each is
a distinct legal issue, as is the additional question of whether a regulation found valid under a
substantive due process analysis nevertheless fails to pass constitutional muster because the
ordinance works a taking without just compensation.
10
The area of land contained within the limits of the legally
described property lines bounding the lot, exclusive of
any existing or proposed street or railroad rights-of-
way, common open space, private easements, easements
for the purposes of access, utility (above or on the
ground) or stormwater management including
infiltration areas, prohibitive steep slopes, floodplain,
floodway, and wetlands as defined by this Ordinance.
Unless otherwise specified, where the term “lot area” is
used in this Ordinance, it shall be construed to mean net
lot area.
(ZO § 27-202 (emphasis added).) Delchester argues that this provision is
constitutionally infirm because it is not substantially related to the legitimate
interest it purports to serve. Delchester contends that under the “net out” provision
it is required to (a) design stormwater management facilities to serve its proposed
development, (b) calculate the area for those facilities, and (c) exclude that area
from the buildable lot area for the proposed development and that the effect of
these requirements is to then preclude the very development for which the
stormwater facilities were designed. Delchester further contends that the
confiscatory nature of the “net out” provision is exacerbated by the requirement
contained in the Township’s SWMO that an above-ground stormwater basin be
limited to a depth of two feet. (See SWMO § 20-303.) Delchester’s argument that
the “net out” provision is invalid implicates its rights under Article I, Sections 1
and 10 of the Pennsylvania Constitution and the Fifth and Fourteenth Amendments
to the United States Constitution to substantive due process and to not have its
property taken without just compensation. Appeal of White, 134 A. 409 (Pa.
1926).7 The Township argues that the “net out” provision is a reasonable site
7
In Appeal of White, our Supreme Court distinguished the power of “eminent domain” from the
“police power” as follows:
11
specific means to regulate density and to serve the stated purpose of the ZO to
preserve the environment, protect natural resources, and prevent flooding. The
Township argues that Delchester failed to meet its burden of proof by
demonstrating that the “net out” requirement was invalid.
“Police power” should not be confused with that of eminent
domain. Police power controls the use of property by the owner,
for the public good, its use otherwise being harmful; while
“eminent domain” and taxation take property for public use.
Under eminent domain, compensation is given for property taken,
injured, or destroyed, while under the police power no payment is
made for a diminution in use, even though it amounts to an actual
taking or destruction of property. Under the Fourteenth
Amendment, property cannot be taken except by due process of
law. Regulation under a proper exercise of the police power is due
process, even though a property in whole or in part is taken or
destroyed. The conditions on which its legitimate exercise is
predicated should actually exist or their happening be so likely that
restraint is necessary, similar to a court issuing a restraining order
for injuries done or threatened to persons or property. Likewise,
there should be a reasonable and substantial relation between the
thing acted on and the end to be attained, one that promotes health,
safety, or general welfare, necessary to the common good, and a
reasonable demand for regulation, not one that is merely an
unnecessary “experimentation or interference with the fundamental
rights of the individual.”
Id. at 411 (citation omitted). This distinction between the power of eminent domain and the
police power is also crucial to the jurisdictional path traveled by claims alleging that a land use
ordinance violates due process of law or constitutes a taking in Pennsylvania. Unlike a claim
where the government has condemned private property or a de facto condemnation has been
alleged, the Eminent Domain Code, Act of May 4, 2006, P.L. 112, 26 Pa. C.S. §§ 101-1106, does
not provide a complete and exclusive remedy. Machipongo Land and Coal Co., Inc. v.
Commonwealth, Department of Environmental Resources, 676 A.2d 199, 203 (Pa. 1996).
Instead, because a land use ordinance is adopted pursuant to the police powers delegated to local
jurisdictions by the MPC, and the MPC vests the zoning hearing board with jurisdiction in the
first instance to hear substantive challenges to the validity of any land use ordinance, with
limited exceptions, constitutional challenges, including those based on an assertion of a taking
by a local entity without just compensation in the permitting context, originate before the zoning
hearing board rather than within the court of common pleas.
12
Delchester’s burden of proof is a heavy one. Property owners have a
constitutional right to enjoy their property. U.S. Const. amends. V, XIV; Pa.
Const. art. I § 1. However, townships may place reasonable limits on the right of
private property owners to do what they wish with their property by enacting
zoning ordinances in accordance with the township’s police powers to protect the
public health, safety, and welfare. Section 604 of the MPC, 53 P.S, § 10604; In re
Realen Valley Forge Greenes Associates, 838 A.2d 718, 727-729 (Pa. 2003); Penn
Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114,
1134 (Pa. Cmwlth. 2014). A zoning ordinance is presumed to be constitutional
unless the party challenging the ordinance demonstrates that the ordinance is
unreasonable, arbitrary, or not substantially related to a township’s power to
protect the public health, safety, and welfare. Village of Euclid, Ohio v. Ambler
Realty Co., 272 U.S. 365 (1926); BAC, Inc. v. Board of Supervisors of Millcreek
Township, 633 A.2d 144, 146-147 (Pa. 1993); Keinath v. Township of Edgmont,
964 A.2d 458, 462 (Pa. Cmwlth. 2009); Fisher v. Viola, 789 A.2d 782, 785 (Pa.
Cmwlth. 2001). In examining whether the ordinance is a valid exercise of the
police powers, reviewing courts employ a substantive due process analysis,
balancing the public interest to be served by the ordinance against the confiscatory
or exclusionary impact of the ordinance on individual property rights; however,
where the validity is debatable, it is the legislature’s judgment that must control.
Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 491
A.2d 86, 90 (Pa. 1985); Penn Street, 84 A.3d at 1134.
A.
Initially, we reject a threshold argument made by Delchester regarding
the Trial Court’s reliance on the ZHB’s findings of fact. Delchester argues that the
13
issue of whether the “net out” provision is a valid ordinance is a pure question of
law akin to whether a proposed use falls within a given category contained in a
zoning ordinance. Whether a zoning ordinance crosses over from a legitimate
exercise of the police power to an unreasonable restriction on an owner’s private
property rights is a question of law but it is not purely a legal question. Rather,
because there is simply no precise formula for determining whether zoning
ordinances regulating private property are valid across the board, absent a
permanent physical invasion or deprivation of all economically beneficial use of
the property, an analysis of the validity of a zoning ordinance must proceed on a
case-by-case basis according to the specific statutory and factual background
presented. National Land & Investment Co. v. Kohn, 215 A.2d 597, 607-608 (Pa.
1965); Penn Street, 84 A.3d at 1135; McGonigle v. Lower Heidelberg Township
Zoning Hearing Board, 858 A.2d 663, 669 (Pa. Cmwlth. 2004).
At the heart of the statutory structure of the MPC—providing
procedural mandates to ensure a fair and uniform process for land use planning and
development while delegating most substantive regulation of land use to local
jurisdictions—is a recognition by the General Assembly that what may be
necessary and legitimate in one jurisdiction may be confiscatory and invalid in
another. Different communities have different concerns, often due to localized
natural features or patterns of density and growth. The localized nature of zoning
and land use recognized by the General Assembly in structuring the MPC also
informs the role the MPC preserves for the zoning hearing board and its provision
for appellate review. Except upon motion by the challenging party or an absence
of fact finding below, the trial court does not take additional evidence and the
findings of fact made by the zoning hearing board “shall not be disturbed if
14
supported by substantial evidence.” Section 1005-A of the MPC, added by the Act
of December 21, 1988, P.L. 1329, 53 P.S. § 11005-A. Where the trial court does
not take additional evidence, the trial court reviews the decision of the zoning
hearing board with the same standard and scope as this Court does upon further
appellate review and is limited to a determination of whether the zoning hearing
board committed an abuse of discretion or error of law and, where the findings of
fact are supported by substantial evidence, the trial court may not disturb the
findings of the zoning hearing board. Boundary Drive Associates, 491 A.2d at 90;
Appeal of M.A. Kravitz Co., Inc., 460 A.2d 1075, 1081 (Pa. 1983); Schwartz v.
Philadelphia Zoning Board of Adjustment, 126 A.3d 1032, 1035 & n.5 (Pa.
Cmwlth. 2015); In re Bartowski Investment Group, Inc., 106 A.3d 230, 238 (Pa.
Cmwlth. 2014); 8131 Roosevelt Corp. v. Zoning Board of Adjustment of City of
Philadelphia, 794 A.2d 963, 970 (Pa. Cmwlth. 2002).
The introduction of constitutional issues into a challenge to a zoning
ordinance does not alter the zoning hearing board’s role as the fact finder or
appellate review; an appellate court’s analysis of legal issues raised before it that
are dependent on the factual circumstances presented, rather than pure questions of
law, must not usurp the zoning hearing board’s role as finder of fact where
substantial evidence in the record supports the board’s findings. In re Realen, 838
A.2d at 731-732; Appeal of M.A. Kravitz Co., Inc., 460 A.2d at 1081; Schwartz,
1126 A.3d at 1043-1045; In re Bartowski Investment Group, 106 A.3d 240-244;
8131 Roosevelt, 794 A.2d at 969-970.8 Where a party has challenged a legal
8
The role of the ZHB as fact-finder is also paramount in matters requiring an analysis of the
related but distinct claim that a taking has occurred. See, e.g., Dolan v. City of Tigard, 512 U.S.
374 (1994); Nollan v. California Coastal Commission, 483 U.S. 825, 834-835 (1987); Penn
Central Transportation Co. v. City of New York, 438 U.S. 104, 125 (1978); Machipongo Land
and Coal Co., Inc. v. Commonwealth, 799 A.2d 751, 769, 771 (Pa. 2002).
15
conclusion based in part on factual findings, but does not contend that the relevant
facts are unsupported by substantial evidence, an appellate court may not act as the
finder of fact under the guise of the plenary review reserved for pure questions of
law. In re Realen, 838 A.2d at 731-732; Jones v. Zoning Hearing Board of Town
of McCandless, 578 A.2d 1369, 1371-1372 & n.2 (Pa. Cmwlth. 1990).
In analyzing the issue of whether the “net out” provision was valid,
the Trial Court applied the correct standard and scope of review. The Trial Court
examined the findings of the ZHB and determined that there was substantial
evidence in the record to support the ZHB’s findings. (Trial Court Op. at 12-15.)
Furthermore, the Trial Court found no grounds to support a conclusion that the
ZHB capriciously disregarded evidence in resolving issues of credibility and the
weight to be afforded the evidence of record. (Id.) Having determined that the
ZHB did not capriciously disregard evidence and that the findings it made were
supported by substantial evidence, the Trial Court examined the legal issues before
it based upon the facts found by the ZHB. Lamar Advertising of Penn, LLC v.
Zoning Hearing Board of Borough Deer Lake, 915 A.2d 705, 709 n.9 (Pa. Cmwlth.
2007) (“Upon reviewing a decision of a zoning hearing board, a court may not
substitute its judgment for that of the board; and, assuming the record demonstrates
substantial evidence, the court is bound by the board’s findings which result from
resolutions of credibility and the weighing of evidence rather than a capricious
disregard for the evidence.”); see also In re Realen, 838 A.2d at 731 (noting “an
unbroken line of authorities which have limited the scope of judicial review of the
findings of zoning hearing boards to a determination of whether those findings are
supported by substantial record evidence.”). Accordingly, we find no error in the
Trial Court’s reliance on the ZHB’s findings of fact.
16
B.
Turning to Delchester’s argument that the “net out” provision is
invalid because it violates Delchester’s right to due process of law, we agree with
Delchester that the “net out” provision, whether coupled with the SWMO two feet
basin requirement or standing alone, is restrictive; however, we are not persuaded
that it lacks a substantial relationship to the public health, safety, and welfare
amounting to an invalid exercise of the police powers.
The practical effect of the “net out” requirement is to require
Delchester to subtract the eased and constrained area of each lot and to use the
remaining area in its calculation of what percentage of the lot may be developed.
Delchester’s argument that this provision is unconstitutional rests upon the premise
that the provision puts a thumb on the scale upsetting the balance between property
owners’ rights and the protection of the public’s health, safety and welfare and
that, in light of this burden, the “net out” provision is unreasonable.
In support of its argument that the “net out” provision unreasonably
restricts its property rights, Delchester cites C&M Developers, Inc. v. Bedminster
Township Zoning Hearing Board, 820 A.2d 143 (Pa. 2002), but misapprehends the
holding. In C&M Developers, our Supreme Court struck down an ordinance in
Bedminster Township that permissibly required landowners of tracts greater than
10 acres to set aside between 50-60% of their agriculturally productive land but,
additionally, impermissibly limited development of remaining land to one acre
minimum lots on a buildable site area, which was defined by excluding
watercourses, floodplains, floodplain soils, wetlands, lakes, or ponds. Id. at 158.
Our Supreme Court’s rejection of the second half of the Bedminster Township
ordinance in C&M Developers was not based on the one acre requirement per se or
17
the exclusion of constrained lands in the calculation but on the one acre
requirement being a matter of private preference and aesthetics rather than a
restriction legitimately enacted to protect the public health, safety and welfare.9
820 A.2d at 158; see also National Land, 215 A.2d at 607-608 (likening every
zoning ordinance to a “point along a spectrum,” with the validity depending on
whether the ordinance fell beyond that point where the regulation ceases to be of
concern to the health and welfare of the general public and becomes a matter of
private preference) .
The portion of the ordinance our Supreme Court concluded was
permissible in C&M Developers had as its purpose the preservation of agricultural
land and activities, a purpose for which the MPC mandates zoning ordinances shall
be designed. 820 A.2d at 155; see Section 604(3) of the MPC, 53 P.S. § 10604(3).
In setting forth the purpose of zoning ordinances in the Commonwealth, the MPC
further provides that, inter alia, zoning ordinances shall be designed to: prevent
overcrowding of land; loss of health, life, or property from flooding; protect and
preserve wetlands, aquifers and flood plains; and promote, protect and facilitate the
provision of a safe, reliable and adequate water supply. Section 604(1) and (2) of
9
Our Supreme Court concluded in C&M Developers that:
While we acknowledge that the [t]ownship has a legitimate interest
in preserving its agricultural lands, we find that by requiring
landowners of tracts greater than ten acres to set aside between
fifty and sixty percent of the agriculturally productive land on their
tracts, the [t]ownship reasonably meets that interest. By also
limiting a landowner to developing homes on one-acre minimum
lots on the buildable site area, however, the [t]ownship is no longer
attempting to preserve agriculture, but rather, is improperly
attempting to exclude people from the area and in so doing, is
unreasonably restricting the property rights of the landowner.
820 A.2d at 158.
18
the MPC, 53 P.S. § 10604(1) & (2).10 Based on the findings of fact made by the
ZHB, the “net out” provision is clearly aimed at mitigating threats to the public
health, safety, and welfare—destruction of sensitive natural features, overcrowding
of land, and harm from stormwater—identified by the MPC as issues local
jurisdictions are mandated to address when adopting local zoning ordinances. In
addition, even if the “net out” provision did not fall squarely within the core 11
10
Moreover, the MPC provides that zoning ordinances may “permit, prohibit, regulate, restrict
and determine,” inter alia:
(1) Uses of land, watercourses and other bodies of water.
(2) Size, height, bulk, location, erection, construction, repair,
maintenance, alteration, razing, removal and use of structures.
(3) Areas and dimensions of land and bodies of water to be
occupied by uses and structures, as well as areas, courts, yards, and
other open spaces and distances to be left unoccupied by uses and
structures.
(4) Density of population and intensity of use.
(5) Protection and preservation of natural and historic resources
and prime agricultural land and activities.
Section 603(b) and (c) of the MPC, 53 P.S. § 10603(b),(c). The MPC further provides that
zoning ordinances may contain provisions to promote and preserve environmentally sensitive
areas and “shall provide for protection of natural and historic features and resources.” Section
603(c)(7) and (g)(2) of the MPC, 53 P.S. § 10603(c)(7), (g)(2).
11
In In re Petition of Dolington Land Group, 839 A.2d 1021 (Pa. 2003), our Supreme Court
examined whether a township’s conservation management zoning district regulations
unreasonably restricted land owners’ rights to develop their private property. Prior to reaching
its conclusion that the regulations were not unreasonably restrictive, the Court examined factors
informing the substance of zoning ordinances that had previously been of little or no concern but
in the time since its landmark decision in Surrick v. Zoning Hearing Board of the Township of
Upper Providence, 382 A.2d 105 (Pa. 1977), had gained preeminence, stating:
These include but are not limited to an increased awareness of the
environmental sensitivity and public value of undisturbed
19
purposes identified by the MPC as those for which local jurisdictions are
authorized to use their police powers, the findings made by the ZHB clearly
establish that the area where Delchester’s lots are located rests upon a sensitive
geological formation presenting unique challenges to the management of
stormwater that necessitates careful development in order to mitigate harm to the
public.
The “net out” provision is not the only means by which the Township
could have sought to secure the public welfare from the dangers posed by
overdevelopment within the Groundwater Protection District overlay. The
Township could have, for example, utilized a gross tract provision coupled with a
wetlands, floodplains, slopes, and woodlands; the growing national
and state-wide awareness of the true costs of sprawl and of the
need to implement contrary land use policies; and the growing
recognition of the importance of agricultural lands and activities
and of prime agricultural soils. Each of these factors acts to
counterbalance to some extent the desire for intense development
and each of these factors can properly serve in an appropriate
municipal or multimunicipal context as a legitimate justification
for the imposition of carefully tailored restrictions of the type,
design, location, and intensity of permitted development.
In re Petition of Dolington Land Group, 839 A.2d at 1032. We do not intend to infer that the
purposes of zoning ordinances identified in the MPC are the only purposes that may inform a
local jurisdiction’s enactment of zoning ordinances. The concerns that local jurisdictions
determine should be addressed through zoning and other land use ordinances are not static, as
reflected in In re Petition of Dolington Land Group, and the governing body of the local
jurisdiction, as recognized by the MPC’s structure, is in the best position to recognize new
factors to inform the substance of zoning ordinances based on its experience and expertise.
Marchipongo, 799 A.2d at 772 (“The rules and understandings as to the uses of land that are
acceptable and unacceptable have changed over time. The fact that sewage was once strewn into
city streets does not give rise to a permanent reasonable expectation that such behavior can
continue indefinitely”). However, where it has been shown that the mischief to be remedied by a
zoning ordinance is at the core of the purposes identified in the MPC, the argument that the
ordinance goes beyond the bounds of the local jurisdiction’s police powers becomes all the more
difficult to substantiate.
20
higher limit on the permissible impervious surface area. However, whether or not
there were other means to achieve the same ends as the Township has here is of no
moment; such considerations are squarely within the judgment of the governing
body. Instead, our review is limited to whether enactment of the “net out”
provision was substantially related to the Township’s authority to protect the
public health, safety and welfare. To put it another way, a substantive due process
analysis asks whether the entity exercising authority has the power to act towards a
particular end and if so, does the means further that end or is it so divorced from
the end that the connection to a valid exercise of authority is severed.
In the instant matter, the evidence presented before the ZHB
demonstrated that the “net out” provision is substantially related to the Township’s
power to protect the public health, safety, and welfare and an outgrowth of the
specific challenges presented by the location of the two lots; moreover, the
evidence showed that the provision relies upon best practices within the
engineering field, rather than an arbitrary view of how best to manage the
infiltration of stormwater.
The ZHB found that the “net out” provision is intended to regulate
density and protect constrained lands, and to do so in a more site specific manner
than gross tract area calculations would allow, because the “net out” determination
is based on the constrained lands unique to the particular property at issue. 12 (ZHB
12
In the discussion section of its opinion, the ZHB credited the testimony of the Township
Engineer, Ronald Ragan, and stated:
The testimony heard by the Board [FN5] was that municipalities
utilize different approaches in calculating lot coverage; some use
gross lot area and some use net lot area. N.T. 201. The purpose of
such provisions is they allow the municipality a way of limiting or
controlling the density of commercial development on a lot. N.T.
199, 202. Such provisions are reasonable zoning requirements.
21
Decision, F.F. ¶¶28-33.) The “net out” provision impacts Delchester’s private
property rights by excluding easements Delchester is required to grant the
Township for the purposes of access, utility (above or on the ground) or
stormwater management including infiltration areas, prohibitive steep slopes,
floodplain, floodway, and wetlands. (ZO § 27-202.) However, in regards to the
N.T. 199. London Grove Township’s regulation reduces lot area
by subtracting therefrom the area consumed by constrained lands.
N.T. 202. This determines lot coverage and makes it more specific
to the lot in question. N.T. 202. Net lot area is more site specific to
environmental constraints on a particular lot. N.T. 204.
Constrained lands include steep slopes, floodplains, wetlands, and
easements. N.T. 205. The purpose for netting out such areas is
that they can’t otherwise be developed. N.T. 205. You can not
develop areas that are eased for utilities. N.T. 205. It is easy to do
the calculations. N.T. 206.
[FN5] The evidence before the Board also included
reference to § 10604 of the MPC which sets forth
zoning purposes to include preservation of the
natural, scenic and historic values in the
environment and preservation of forests, wetlands,
aquifers and floodplains; the prevention of flooding.
See Exhibit TP-12. The Township’s
Comprehensive Plan was entered into evidence.
See Exhibit TP -13, N.T. 188 -189. It sets forth
provisions related to natural resource protection
goals to include protection of groundwater,
floodplains, streams, wetlands, mature woodlands
and specimen trees, steep slopes, stormwater
management programs, open space considerations,
best management practices for development
regulations to assure that developments minimize
off-site stormwater runoff, increase on site
infiltration, encourage natural filtration functions,
aquifer recharge protection, etc. See Exhibit TP -
13.
(ZHB Decision, Discussion at 17-18.)
22
easements required to permit the Township access to inspect and maintain
stormwater facilities, the ZHB found that improperly maintained stormwater
facilities can lead to “flooding, standing water in basins and represent a safety risk
for children,” and that the inspection and maintenance of stormwater facilities is
necessary to prevent and protect the public from these dangers. (Id., F.F. ¶¶20-
22.)13 Delchester’s property rights are further impacted by the fact that the amount
of land excluded from the area and bulk calculations applicable to the lot is
determined in part by the type of stormwater management system Delchester is
permitted to utilize, which is also subject to regulation by the ZO’s requirement
that the infiltration devices permitted shall not have a head of more than two feet.
(ZO § 27-1406.8; see also SWMO § 20-303.) However, in regards to the ZO’s
requirement that “induced concentrated infiltration through infiltration devices for
stormwater runoff shall not have a head of more than two feet in the Cockeysville
Marble Area,” the ZHB found that water travels through the Cockeysville Marble
Area very quickly and that the aquifer within the Cockeysville Marble Area has
been recognized as being under threat, a threat the governing body determined
necessitated the adoption of best management practices developed by the
Pennsylvania Department of Environmental Protection for the infiltration of
stormwater runoff in the Township’s Groundwater Protection District. (Id.; ZHB
Decision, F.F. ¶¶34-36, 38, 41-42.) The ZHB further found that regulating
infiltration of stormwater in the Groundwater Protection District is important to
avoid contaminating the groundwater, reducing the risk of sinkholes, and
protecting the aquifer and that limiting the head of infiltration devices to two feet
13
In addition, the ZHB noted that the MPC provides analogous authority for including SALDO
provisions that insure “adequate easements or rights-of-way shall be provided for drainage and
utilities.” Section 503(2)(iii) of the MPC, 53 P.S. § 10503(2)(iii); (ZHB Decision, F.FF. ¶19).
23
or less is a well-established standard for infiltrating stormwater within the
engineering field, and thus an effective means of protecting the Cockeysville
Marble area and regulating the quality and quantity of groundwater.14 (ZHB
Decision, F.F. ¶¶39, 42-45.)
The Township has the authority to use its police powers to protect
constrained lands, regulate density and ultimately mitigate the harm traced to
stormwater. The governing body enacted the “net out” provision to protect
constrained lands, regulate density, and mitigate the harm stormwater poses to life
and property. The terms of the “net out” provision further the purpose of
protecting constrained lands, regulating density, and mitigating the effect of
stormwater. The record here does not support a legal conclusion that the “net out”
provision is unreasonable, arbitrary or not substantially related to the Township’s
power to protect the public welfare. There is no support in the record for the
conclusion that the burden on Delchester’s ability to develop its property is such
14
In its discussion of the evidence, the ZHB stated:
A “head” is the distance between the bottom of an infiltration
device to the discharge point. N.T. 195, 197. An infiltration
device is used to handle stormwater to get it back into the ground.
N.T. 195. The zoning ordinance allows a head of 2 feet in the
Cockeysville Marble Area. Z/O, §27- 1406.8. N.T. 196 -197. The
greater the size of the head the greater the likelihood that too much
water is forced into the ground such that the normal purifying
properties of the upper layers of the ground are short-circuited
which could contaminate the groundwater because the water
moves very quickly through the Cockeysville Marble Are. N.T.
195. The head distance is important because it determines depth
and weight of the water you are pushing into the ground. N.T. 195,
197. If the depth is too 'great this has a tendency to over saturate
or infiltrate or compress the soil so you lose some-of the
functionality of the soil or you can create sink holes.
N.T. 196.
(ZHB Decision, Discussion at 19)
24
that it outweighs the Township’s exercise of its police powers. Moreover, we
reject the contention that Delchester is precluded by the ZO from building the
development for which the stormwater facilities were designed because it is
required to subtract the nonbuildable area where the stormwater facilities are
located from its calculation of impervious surface area; rather, Delchester is
prohibited by the ZO from building the development for which the stormwater
facilities were designed because the use of land proposed by Delchester
overcrowds the land in the Groundwater Protection District overlay and threatens
constrained native environmental features, increasing the likelihood of harm to life
and property from stormwater. Accordingly, the Trial Court did not err in
concluding that the “net out” provision withstood a substantive due process
challenge.
C.
The lack of a successful substantive due process challenge to the “net
out” provision, however, does not end the constitutional scrutiny necessitated by
Delchester’s challenge. A substantive due process challenge to a land use
ordinance is distinct from a challenge based upon a private property owner’s rights
under the Fifth and Fourteenth Amendments to the United States Constitution and
Article 1, Section 10 of the Pennsylvania Constitution to just compensation for
property taken by the government. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,
542 (2005); Machipongo, 799 A.2d at 763, n.7 (noting that the Pennsylvania
Constitution and United States Constitution are coextensive with regard to an
analysis of whether a taking has occurred); see also Commonwealth v. Gary, 91
A.3d 102, 108 (Pa. 2014) (discussing coextensive constitutional analysis). In a
takings analysis, we do not inquire into the underlying validity of the regulation,
25
for the Takings Clause presupposes that the ordinance was enacted in pursuit of a
valid purpose. Lingle, 544 U.S. at 543; Miller and Son Paving, Inc. v. Plumstead
Township Bucks County, 717 A.2d 483, 486 n.6 (Pa. 1998) (distinguishing a
takings claim from a validity claim). Instead, the analysis inquires whether a
“nexus” and “rough proportionality” exists between the property that the
government demands in the permitting process and the social costs to the public
from the proposed development, such that it is permissible to condition
development approval upon the dedication of private property without payment of
just compensation. Koontz v. St. Johns River Water Management District, __
U.S.__, __, 133 S. Ct. 2586, 2595 (2013); Lingle, 544 U.S. at 538-540; Dolan v.
City of Tigard, 512 U.S. 374 (1994); Nollan v. California Coastal Commission,
483 U.S. 825, 834-835 (1987). The Takings Clause does not mandate that
government purchase land every time it has enacted regulation that impacts private
property rights; rather, it inquires whether the valid requirement that a property
owner mitigate the impact of a proposed development becomes invalid by
demanding too much from the individual property owner in furtherance of this
goal.15
15
See Koontz, __ U.S. at __, 133 S. Ct. at 2595 (“Insisting that landowners internalize the
negative externalities of their conduct is a hallmark of responsible land-use policy”; the Takings
Clause allows permitting authorities to “insist that applicants bear the full costs of their proposals
while still forbidding the government from engaging in ‘out and out…extortion’”); Keystone
Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 490-491 (1987) (“Under our system
of government, one of the State’s primary ways of preserving the public weal is restricting the
uses individuals can make of their property. While each of us is burdened somewhat by such
restrictions, we, in turn, benefit….‘all property in this country is held under the implied
obligation that the owner’s use of it shall not be injurious to the community,’ and the Takings
Clause did not transform that principle to one that requires compensation whenever the State
asserts its power to enforce it.” (internal citations omitted)); Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) (“Government hardly could go on if to some extent values incident to
property could not be diminished without paying for every such change in the general law. As
26
The United States Supreme Court has termed the takings precedent
applicable to Delchester’s challenge to the “net out” provision the doctrine of
“unconstitutional conditions.” Unconstitutional conditions cases generally arise in
the context of the subdivision and land development permit approval process,
where the permit is either granted with conditions or denied, and the issue is
whether the conditions attached to the grant or not satisfied in the denial amount to
unconstitutional exactions; however, in the context of an application for zoning
relief, the issue of whether a requirement in an ordinance represents an
unconstitutional condition may also arise. The issue in the instant matter is
whether the requirement in the Township’s ZO conditioning Delchester’s right to
proceed with its proposed development on Delchester’s grant of an easement to the
Township for inspection and maintenance of its stormwater facilities and exclusion
of that eased portion of the property in its calculation of the area permitted to
contain impervious surfaces bears an essential nexus to the Township’s legitimate
interest in regulating stormwater and a rough proportionality to the impact of
Delchester’s proposed development on that interest. Under this formulation,
Delchester likens the portions of its property eased and restricted by the “net out”
provision to a dedication of its property for a public use. The United States
Supreme Court’s decisions in Nollan v. California Coastal Commission, 483 U.S.
825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), are particular
instructive regarding this issue.
long recognized some values are enjoyed under an implied limitation….But obviously the
implied limitation must have its limits…. One fact for consideration in determining such limits is
the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there
must be an exercise of eminent domain and compensation to sustain the act.”).
27
In Nollan, the California Coastal Commission conditioned a permit
sought by the applicants to demolish an existing bungalow and replace it with a
three-story residence upon the applicants’ grant of a lateral public easement. 483
U.S. at 828. The California Coastal Commission asserted that the easement was
necessary because the legitimate state interest of preserving visual access to the
ocean for the public would be diminished by the applicants’ use of their property to
develop a large residence. Id. The Court held that the permit condition was
unconstitutional without payment of just compensation because the California
Coastal Commission imposed a burden of providing permanent lateral access for
the public across the applicants’ property, a condition which had no nexus to the
purpose of protecting the public’s visual access to the ocean. Id. at 837. In
reaching its holding, the Court reasoned that had the applicants been required to
“make an easement across their beachfront available to the public on a permanent
basis in order to increase public access to the beach, rather than conditioning their
permit to rebuild their house on their agreeing to do so,” there would have been a
taking. Id. at 831. However, the condition would be constitutional even if it
required the applicants to:
Provide a viewing spot on their property for passersby
with whose sighting of the ocean their new house would
interfere. Although such a requirement, constituting a
permanent grant of continuous access to the property,
would have to be considered a taking if it were not
attached to a development permit, the Commission’s
assumed power to forbid construction of the house in
order to protect the public’s view of the beach must
surely include the power to condition construction upon
some concession by the owner, even a concession of
property rights, that serves the same end. If a prohibition
designed to accomplish that purpose would be a
28
legitimate exercise of the police power rather than a
taking, it would be strange to conclude that providing the
owner an alternative to that prohibition which
accomplishes the same purpose is not.
The evident constitutional propriety disappears, however,
if the condition substituted for the prohibition utterly fails
to further the end advanced as the justification for the
prohibition…. In short, unless the permit condition serves
the same governmental purpose as the development ban,
the building restriction is not a valid regulation of land
use but “an out-and-out plan of extortion.”
Id. at 836-837 (citations omitted). Having concluded that the condition that the
applicants provide permanent lateral access across their property to the public did
not have an essential nexus with the California Coastal Commission’s legitimate
state interest in protecting the public’s view of the ocean, the Court held that either
the condition must be removed or just compensation must be paid to the applicants
for the easement. Id. at 841. As a consequence of holding that there was no nexus
between the permit condition and the California Coastal Commission’s legitimate
interest in protecting the public’s view of the ocean, it was not necessary for the
Court to address the next part of the unconstitutional conditions doctrine: whether
the record demonstrated the required degree of connection between the burden
imposed on the applicants’ property rights by the challenged condition and the
projected impact of the proposed development on the government’s legitimate
interest. Id. at 841; see also Dolan, 512 U.S. at 386.
Unlike in Nollan, the conditions placed on zoning approval of
Delchester’s proposed development by the “net out” provision—granting an
easement to the Township for inspection and maintenance of the stormwater
facilities, limiting the head of the infiltration devices Delchester may utilize, and
29
excluding the eased portion of the lot from impervious surface calculations—have
an essential nexus with the impact of Delchester’s proposed development. The two
lots Delchester seeks to develop are located in a zoning district with an underlying
geology that fuels a quantity and velocity of stormwater which presents a hazard to
the public. The “net out” provision is a direct attempt to mitigate any external
harm to the public by internalizing the impact of the increased impervious surfaces
that must necessarily result as a part of Delchester’s development of its property.
There is nothing to suggest that, like the lateral easement in Nollan, the “net out”
provision imposes conditions that fail to further the regulation of stormwater and
instead seek to advance an agenda unrelated to the impact of Delchester’s proposed
development. Therefore, we must examine whether a rough proportionality exists
between the development restrictions imposed by the “net out” provision and the
impact of Delchester’s proposed development.
The United States Supreme Court’s decision in Dolan is
distinguishable from Nollan in that the issues presented did require the Court to
address the second part of the constitutional conditions doctrine and to examine
whether the record evidenced a rough proportionality between the condition
imposed and the interest to be served. 512 U.S. at 388, 391. The applicant in
Dolan sought a permit to reconfigure the permitted use on her property by razing
her existing commercial building, constructing a new building double in size to
house that commercial use along with a paved parking lot, and constructing an
additional complementary commercial use with parking. Id. at 379. Applicant’s
permit was granted by the city on the condition that applicant dedicate a portion of
her property lying within the 100-year floodplain for improvement of a storm
drainage system along an adjacent creek, dedicate a portion of her property fifteen
30
feet above the floodplain boundary as a pedestrian/bicycle path, and design the
proposed development so as not to intrude upon the combined areas, which would
form a public greenway. Id. at 380, 388. The zoning district within which
applicant’s property was located also required applicant to meet a fifteen percent
open space and landscaping requirement, which could be met in part by the
dedications. Id. at 380.
Addressing the first prong of the unconstitutional conditions analysis,
the Court concluded that an essential nexus existed between the conditions
imposed by the city and the city’s legitimate interest in the prevention of flooding
around the creek and the reduction of traffic congestion in the zoning district where
the property was located. Dolan, 512 U.S. at 387. The Court next examined
whether the conditions demanded in exchange for permit approval bore the
required relationship to the impact of the applicant’s proposed development. Id. at
388. In concluding that the rough proportionality required for the city to impose
the permit conditions without the payment of just compensation was lacking, the
Court stated:
It is axiomatic that increasing the amount of impervious
surface will increase the quantity and rate of storm water
flow from [applicant’s] property. Therefore, keeping the
floodplain open and free from development would likely
confine the pressures on Fanno Creek created by
[applicant’s] development. In fact, because [applicant’s]
property lies within the Central Business District, the
[zoning ordinance] already required that [applicant] leave
15% of it as open space and the undeveloped floodplain
would have nearly satisfied that requirement. But the
city demanded more-it not only wanted [applicant] not to
build in the floodplain, but it also wanted [applicant’s]
property along Fanno Creek for its greenway system.
31
The city has never said why a public greenway, as
opposed to a private one, was required in the interest of
flood control.
The difference to [applicant], of course, is the loss of her
ability to exclude others. As we have noted, this right to
exclude others is “one of the most essential sticks in the
bundle of rights that are commonly characterized as
property.” It is difficult to see why recreational visitors
trampling along [applicant’s] floodplain easement are
sufficiently related to the city’s legitimate interest in
reducing flooding problems along Fanno Creek, and the
city has not attempted to make any individualized
determination to support this part of its request.
Id. at 393 (internal citations omitted). The Court contrasted the conditioning of the
permit on the provision of a public greenway in Dolan with the hypothetical
instance where the proposed development for which the permit was issued
somehow encroached upon an existing public greenway, concluding that such an
encroachment would evidence the type of proportional relationship between the
impact of the proposed development and the city’s legitimate interest that was
lacking in the factual record before it in Dolan. Id. at 395. Similar to its
conclusion regarding the greenway, the Court concluded that the factual findings
underlying the imposition of the bicycle/pedestrian path were lacking because
rather than being rooted in a finding that the path could or was likely to offset
some of the traffic issues in the district, the evidence concerning the impact of the
path on traffic demands straining the district was merely speculative. Id. at 396.
Accordingly, the Court held that by imposing the conditions it did upon the grant
of applicant’s permit, the city traversed the outer limits of permissible land use
planning by burdening applicant’s constitutional rights to achieve ends unrelated to
32
the impact of applicant’s proposed development without the payment of just
compensation. Id. at 396.
The burden placed upon Delchester’s property by the “net out”
provision is quite distinguishable from the unconstitutional condition imposed in
Dolan; unlike the city in Dolan, the Township here has not “demanded more.” Id.
at 393. First, the impervious surface requirement in the “net out” provision is a
limitation on Delchester’s use of its property rather than an exaction; the portion of
the property that cannot be built upon because of the need to mitigate the quantity
and velocity of stormwater remains in Delchester’s possession and control, and
Delchester retains the right to exclude, as well as enjoy or dispose of the property.
Second, the requirement that Delchester limit the head of the infiltration devices it
utilizes to mitigate stormwater effects no taking. While the limitation may lead to
an increase in the amount of land that must be eased for inspection and
maintenance by the Township under the “net out” provision, any increase in the
amount of eased property is a direct outgrowth of Delchester’s actual use of the
property. Moreover, unlike the factual findings underlying the imposition of the
bicycle/pedestrian path in Dolan, the findings made by the ZHB in support of the
two-foot head limitation demonstrates that the requirement is rooted in best
engineering practices in response to the difficulty of infiltration specific to the
geography of Delchester’s property, rather than mere conjecture. Finally, the
requirement that Delchester ease the land containing the stormwater facilities once
they are constructed places a minimal burden on Delchester’s right to exclude and
has no impact on the remainder of the sticks in Delchester’s bundle of property
rights. The Township’s right to enter Delchester’s property is narrowly defined by
the easement, which expressly limits entry to inspection and maintenance of the
33
stormwater facilities. No member of the general public is granted a right of entry
due to the easement. In addition, the size of the easement is directly controlled by
Delchester’s decisions on how to use and develop its property, rather than a
generalized one-size-fits-all mandate.
Ultimately, the rough proportionality prong of the “unconstitutional
conditions” test questions whether the conditions imposed by the “net out”
provision on Delchester’s use of its property has gone too far such that it no longer
merely mitigates the impact of Delchester’s proposed development but instead
requires Delchester to bear a public burden that the constitutions of the United
States and this Commonwealth require the public at large to bear. The conditions
here do not. Instead, the “net out” provision functions as a tailored, flexible
restraint on use of property that is at minimum roughly proportional to the impact
of that particular use. Accordingly, we hold that the “net out” provision furthers
the Township’s legitimate interest in the mitigation of the hazards posed by
stormwater and contains the essential nexus and rough proportionality to the
impact of Delchester’s proposed development on that interest to withstand
constitutional scrutiny.
III.
Next, Delchester argues that the interpretation of the word “site” in
Section 1406.7 of the ZO as synonymous with the term “lot” is erroneous. Section
1406.7 of the ZO provides:
Continued groundwater recharge is to be assured through
diffuse infiltration through upper soil horizons, through
wooded ground, grassy areas, and infiltration berms,
impervious coverage of sites in or partially in the
[Groundwater Protection District] shall not exceed 50
percent of the portion that is within the carbonate area.
34
(ZO § 27-1406.7) The ZO does not contain a definition for the word “site.” The
ZO does define the word “lot” as “a parcel of land described by metes and bounds,
deed descriptions, or an approved subdivision.” (Id. § 27-202.) Delchester
contends that to treat the two terms “lot” and “site” as synonymous where “lot” is
specifically defined in the ZO and “site” is not runs afoul of the principles of
statutory construction. Delchester argues that under the ZO the term “site” is used
to refer to a development as a whole and is not synonymous with each individual
“lot” within a proposed development. As a result of this interpretation, Delchester
contends that the impervious surface limitation within the Groundwater Protection
District overlay should be calculated over both lots, rather than each individually,
because together the lot within the CI District and the lot within the Industrial
District constitute one site. The Township argues that Delchester’s Plan treats each
individual “lot” as a “site” because it reserves the right to develop the lot within the
Industrial District in the future and utilizes that lot in its Plan merely to provide an
internal access drive. The Township contends that Delchester’s intent to develop
the CI and Industrial lots separately instead of as one “site” requires each lot to
meet the applicable impervious surface coverage limitations.
It is axiomatic that the principles of statutory construction apply to the
interpretation of zoning ordinances. Borough of Fleetwood v. Zoning Hearing
Board of Borough of Fleetwood, 649 A.2d 651, 656 (Pa. 1994).16 The words and
phrases of zoning ordinances shall be construed according to their common and
approved usage and in accordance with the rules of grammar; undefined terms in a
zoning ordinance must be given their plain, ordinary meaning. 1 Pa. C.S. §
16
See also Statutory Construction Act of 1972, Act of December 6, 1972, P.L. 290, 1 Pa.C.S. §§
1501-1991.
35
1903(a). Furthermore, a zoning ordinance shall be construed, if possible, to give
effect to all of its provisions. 1 Pa. C.S. § 1921. The guiding principle in
interpreting land use ordinances requires ambiguous language in an ordinance to be
construed in favor of the property owner and against any implied extension of the
restriction; however, such an interpretation is unwarranted where “the words of the
zoning ordinance are clear and free from any ambiguity.” Borough of Fleetwood,
649 A.2d at 657; City of Hope v. Sadsbury Township Zoning Hearing Board, 890
A.2d 1137, 1143 (Pa. Cmwlth. 2006). Finally, because the zoning hearing board is
the entity charged with the interpretation and application of a zoning ordinance, a
board’s interpretation of its own ordinance is entitled to great weight and
deference. Broussard v. Zoning Board of Adjustment of City of Pittsburgh, 907
A.2d 494, 500 (Pa. 2006); Kohl v. New Sewickley Township Zoning Hearing
Board, 108 A.3d 961, 968 (Pa. Cmwlth. 2015).
While Delchester’s argument relies upon a correct statement of the
law regarding how a reviewing court must interpret a zoning ordinance, Delchester
erroneously asserts that the principles of statutory construction are determinative of
the issue before us. The Township does not dispute that the term “site” as used in
the ZO is necessarily broader than the definition provided for the term “lot.”
Rather, the ZHB and the Trial Court concluded that there was substantial evidence
in the record to demonstrate that Delchester’s Plan did not merge the two lots into
one “site.” (ZHB Decision, F.F. ¶¶83-87; Trial Court Op. at 19-20.) Therefore,
while the two terms may have different meanings when applied to a “site”
consisting of multiple lots, the terms become synonymous in the instant matter by
virtue of the fact that each “site” Delchester seeks to develop consists of a single
“lot.” As a result, the Trial Court did not err in concluding that Delchester’s
36
development of the CI lot must not exceed the impervious surface coverage
limitations applicable to sites within the Groundwater Protection District.
VI.
Delchester’s final argument on appeal concerns whether the Trial
Court erred in concluding that the access point Delchester seeks to construct on the
Industrial Lot to allow vehicles to travel onto the Industrial lot from Old Baltimore
Pike and across the Industrial lot to the CI lot is an “internal access drive” rather
than a “driveway.” The Township contends that the access point Delchester is
seeking serves multiple buildings and the parking lot on the CI lot, and therefore
clearly fits within the definition of an “internal access drive” rather than a
“driveway.”17
Under the ZO, the term “driveway” is defined as “a private cartway
providing vehicle access from such property to and from a public or private street,
designed in accordance with the Township’s [SALDO].” (ZO § 27-202.) The
term “driveway, internal access” is defined in the ZO as “a private driveway within
a tract of land and designed to serve multiple units or buildings, linking parking
lots and individual driveways to adjacent streets.” (ZO § 27-202.) A special
exception may be granted to permit an “internal access drive” to be located within
17
The Trial Court concluded that Delchester had waived its argument that the access point is
both a “driveway” and an “internal access drive.” (Trial Court Op. at 18.) In addition, the Trial
Court concluded that even if the argument had not been waived, by advancing the theory that the
access point was both an “internal access drive” and a “driveway,” Delchester consequently
admitted that the access point was an “internal access drive.” (Id.) Finally, the Trial Court
concluded that Delchester was attempting to re-litigate an issue that had been decided in the
ZHB’s 2008 decision denying Delchester a special exception to locate an “internal access drive”
on the Industrial lot. (Id.) With regard to the waiver issue, we conclude that Delchester’s
argument regarding the dual nature of the access point was sufficiently presented before the ZHB
and is therefore cognizant on appeal. In regards to Delchester’s contention that any reliance on
the ZHB’s 2008 decision is improper, we disagree, as it was clearly made a part of the record
below by Delchester, which submitted the decision as Exhibit A7 before the ZHB. (ZHB
Decision, F.F. ¶¶80-81.)
37
the 100-foot sideyard setback from the Industrial Lot boundary line, as long as it is
reduced by no more than 25 feet. (ZO § 27-1303(2)(B).) An entrance or exit
“driveway” is permitted within the setback. (Id.) The access point proposed by
Delchester is within 8 feet of the boundary line; if is a “driveway” then it is
permitted within the setback, if it is a “driveway, internal access” then it is not
permitted within the setback.
The ordinance is not ambiguous. An internal access drive is a specific
type of driveway subject to a greater perimeter setback than an entrance or exit
driveway. The access point proposed by Delchester is a driveway but, as admitted
by Delchester, the access point falls within the more specific definition of a
“driveway, internal access,” because it is designed to serve multiple units or
buildings, linking parking lots and individual driveways to adjacent streets, and is
not limited to providing access to and from a public street. Therefore, the
additional access point proposed by Delchester to link the Industrial lot’s frontage
on Old Baltimore Pike to the buildings and parking located on the CI lot is subject
to the more restrictive setback applicable to a “driveway, internal access.”
Furthermore, even if we concluded that the access point was a
“driveway” and not subject to the less restrictive setback, Delcehster would still
not be entitled to zoning relief. The ZHB found, as it did in its 2008 decision, that
the access point proposed by Delchester on the Industrial lot would impede the
flow of traffic and lead to a stacking problem adversely impacting the public
health, safety and welfare. (ZHB Decision F.F. ¶¶80-81, Discussion at 13-14.)
This finding was supported by expert testimony from the Township Engineer
found credible by the ZHB. (Id.) Notably, the ZHB also found that the only
difference between Delchester’s previous proposal to construct an internal access
38
drive and the current proposal is that the newly located internal access drive would
exacerbate the stacking issue by reducing the distance between the CI lot access
point to Old Baltimore Pike and the proposed internal access drive. (Id.)
Delchester has not challenged the ZHB’s finding that the additional access point on
the Industrial lot would have a detrimental effect on the public welfare and
therefore it is not only binding on appeal, but determinative of Delchester’s
challenge to the ZHB’s denial of zoning relief. See, e.g. O’Hara’s Appeal, 131
A.2d 587, 596 (Pa. 1957); In re Jones, 29 A.3d 60, 65 (Pa. Cmwlth. 2011).
In sum, we hold that: (i) the Trial Court did not err in concluding that
the ZHB lacked jurisdiction to decide Delchester’s substantive validity challenge
to the Township’s SWMO because the SWMO is not a land use ordinance; (ii) the
Trial Court did not err in concluding that the “net out” provision in the Township’s
ZO is valid because the provision is substantially related to the Township’s power
to protect the public health, safety, and welfare, and the provision has the required
nexus to the Township’s legitimate interest in mitigating the impact of stormwater
on the public and, at minimum, bears a rough proportionality to the impact of
Delchester’s proposed development on that interest; (iii) the Trial Court did not err
in concluding that the word “site” as used in the ZO is synonymous with the word
“lot” as that term is defined in the ZO when applied to Delchester’s proposed
development; and (iv) the Trial Court did not err in its conclusion that the proposed
driveway is a “driveway, internal access” as that term is defined in the ZO.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
39
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delchester Developers, L.P., :
Appellant :
:
v. : No. 86 C.D. 2016 and 87 C.D. 2016
:
Zoning Hearing Board of the :
Township of London Grove and :
London Grove Township and :
Dominic DiFilippo, Ricco DiFilippo, :
and Lynn Soliwoda-DiFilippo :
ORDER
AND NOW this 9th day of May, 2017, the December 18, 2015 order
and the January 4, 2016 amended order of the Court of Common Pleas of Chester
County affirming the June 27, 2014 decision and order of the London Grove
Township Zoning Hearing Board in the above-captioned matter are AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge