Harvin v. Bd. of Comm’rs of Upper Chichester Twp., 33 A.3d 709 (Pa. Commw. Ct. 2012).

Stormwater management facilities could not be counted towards open space requirements based on the ordinance's definition of common open space.
Case Details:

Applicant submitted a subdivision and land development plan for tentative approval of a Planned Residential Development in the Township’s new PRD District.  The PRD District required 25% of the gross tract area to be devoted to common open space that could be used and enjoyed by residents of the development.  Among other reasons, the Board of Commissioners denied the application because the common open space requirement of the PRD District was not met.  While Applicant’s Plan designated a sufficient amount of open space, the Board determined that certain areas could not be counted as open space because they were used for storm water management.

The Commonwealth Court agreed with the Board on appeal.  The Commonwealth Court determined that, as defined, “common open space” did not include areas set aside for public facilities.  While the Zoning Ordinance did not define the term “public facilities,” the Commonwealth Court looked to the common meaning, as required by the Zoning Ordinance, and approved of the Board’s interpretation.  Because “[t]he storm drainage system for a PRD shall be designed and constructed so as to minimize erosion and flooding, using as necessary drainage easements, swales, catchment basins, [and] silt traps … so as to minimize runoff” it is considered a “public utility” regardless of whether it is designed to serve the public at large or just the development.   Accordingly, the stormwater facilities could not be included as common open space.  Therefore, the plan failed to meet the substantive and objective requirements of the Zoning Ordinance.

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