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A township may not utilize the most restrictive map in determining existence and location of a floodplain, but instead must comply with the plain language of the zoning ordinance; and a developer may not force a municipality to accept dedication of a private road as public.
Stingray, L.P. v. Concord Township Zoning Hearing Board, 975 A.2d 1208 (Pa. Commw. 2009).
A developer sought to subdivide and develop an 18 acre parcel of land. With the exception of a strip of land 50’ by 800’, the property is landlocked, and the developer proposed construction of a road with a bridge over Chester Creek. The developer applied for a special exception – later amended to request a variance, as the access road is located in floodplain, and the Zoning Ordinance permits construction of bridges in the floodplain only by special exception. Further, the developer required relief from the Subdivision and Land Development Ordinance, as he sought to construct 15 lots, and the SALDO permitted only five lots when access is via private road. The application also requested that the access road be determined a public road. The Zoning Hearing Board conducted hearings, including testimony by experts offered by the developer and the Township. The Zoning Hearing Board denied the special exceptions for a public road and construction of the bridge, as well as the request for a variance. On appeal, the Court affirmed the decision that the developer could not construct a public road, but reversed the Zoning Hearing Board’s decision denying the special exception to construct the bridge. The Township, neighboring property owners and the developer appealed.
The first issue on appeal was whether the Zoning Hearing Board erred in using the “Concord Map,” not the FEMA Map, to determine whether the land on which the road would be located was, in fact, in a floodplain. The Zoning Ordinance defined a floodplain as lands “which are subject to the one-hundred-year flood” as identified by FEMA. If the Concord Map did not depict a 100-year flood, then the Court concluded the Board improperly used this map. Because it could not determine this from the record, the Court remanded for further evidentiary proceedings to determine whether the Concord Map correctly depicted a 100-year flood.
The Court declined to address the other issues raised on appeal, but pointed out in a footnote that even if it can successfully demonstrate that the Zoning Hearing Board used the incorrect map and the land does not constitute a floodplain, the developer must still address public health and safety concerns concerning other aspects of the proposed development, including the financial burden of a public road, and potential danger to health, safety and welfare. It noted finally that even if there is no floodplain, the developer cannot force the Township to accept dedication of its access road as a public road, significantly restricting the possible number of lots.
Opinion Date: June 3, 2009
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