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Key Topic: Zoning Validity Challenges

A municipality did not abuse its discretion by adopting a more restrictive ordinance with respect to flood plain boundaries than that required by FEMA.

In re: Schieber, 927 A.2d 737 (Pa. Commw. 2007). 

Appellants owned property in the Borough of Hatboro within the Borough’s Flood Plain Conservation District.  The Borough enacted a flood plain ordinance, establishing a flood plain conservation district pursuant to boundary lines drawn by FEMA.  Section 501.6 of the Ordinance describes the areas included in the flood plain.  In 2003, the Borough adopted Ordinance No. 945, which added a phrase to the description of the flood plain to exclude any amendments to the flood plain boundaries previously drawn by FEMA.  Appellants submitted a private study regarding their property to FEMA, and FEMA issued a Letter of Map Revision that excluded their property from the flood plain. 

In October 2004, Appellants requested a hearing with Borough Council to challenge the validity of the Ordinance No. 945 and submitted an amendment pursuant to Section 609.1 of the Pennsylvania Municipalities Planning Code (MPC).  Appellants argued that the ordinance No. 945, applied only to “amendments” and not to revisions to the flood plain map, that the Borough’s adoption of No. 945 was not within its police powers, that No. 945 constituted illegal spot zoning, and that the Borough unreasonably relied on an unpublished Temple University study as justification for enacting No. 945.  The Borough Council found that Ordinance No. 945 was not illegal and that the Borough exercised appropriate judgment when it did not accept Appellant’s proposed Revision.  The trial court affirmed the decision of the Borough Council.

On appeal to the Commonwealth Court, Appellants requested permission to present new evidence about the Temple Study under Section 1005-A of the MPC.  The Court denied the request because the study was not complete.  Appellants raised five issues on appeal:  (1) the Borough’s enactment of No. 945 was an abuse of discretion; (2) No. 945 constituted illegal spot zoning because it targeted Appellants’ property and included it as part of the flood plain; (3) the Borough’s reliance on the unpublished Temple Study was unreasonable; (4) No. 945 applies only to “amendments,” not revisions to the flood plain map; and (5) No. 945 was “special legislation” intended to prevent Appellants from developing their property.

The Court held that the Borough acted within its police power to enact Ordinance No. 945 and that the Borough had discretion to adopt a more restrictive flood plain map in order to protect its citizens.  The Borough’s ordinance was not spot zoning because it treated all properties in the flood plain similarly, and the Court found no evidence to conclude that the Borough unreasonably relied on the Temple Study or enacted No. 945 to inhibit Appellants’ use of their property.  The Court affirmed the holding of the trial court.


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