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A Zoning Hearing Board does not have authority to allocate sewage capacity between proposed development projects.
Greth Development Group, Inc. v. Zoning Hearing Board of Lower Heidelberg Township, 918 A.2d 181 (Pa. Cmwlth. 2007)
Landowner is a developer who purchased 172.03 acres of property located in the A-1 (Agricultural Preservation) and R-6 (Suburban Residential) Zoning Districts. Landowner filed a special exception application with the Zoning Hearing Board (ZHB) to develop 82 single-family detached dwellings on the A-1 property. There were 100 Equivalent Dwelling Units available for property located in both of the zoning districts (an EDU is equal to the amount of sewer capacity required by the average household). A neighboring landowner asked the ZHB not to let landowner develop the A-1 land for residential purposes. The ZHB developed an “allocation theory” whereby the R-6 property would receive 77 EDU’s, leaving 33 EDU’s for the A-1 property instead of the 82 EDUs requested. The ZHB denied the application on the grounds that it did not meet public sewer requirements. Landowner appealed, and the trial court affirmed the ZHB’s decision. Landowner then appealed to the Commonwealth Court.
On appeal, Landowner argued that the ZHB did not have the authority to allocate sewage capacity to another proposed project. The Commonwealth Court agreed and held that even though the Zoning Ordinance allowed residential development by special exception only if sewer and water was provided, the ZHB had no power to allocate available sewer capacity to “by-right” property first, instead of “by residential exception” property. Moreover, the Court held that a ZHB has no implied power to regulate land development generally. Ordinarily, as was the case here, such matters are reserved to the governing body or the planning commission under the Subdivision and Land Development Ordinance.
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