In re: Application of Brandywine Realty Trust to the Newtown Twp. ZHB
857 A.2d 714 (Pa. Cmwlth. 2004)

Case Details:

In this case, the ZHB granted a variance and a special exception to the applicant to build a bridge in a floodplain. The ZHB accepted the application because it stated that the ordinance was ambiguous. The adjacent landowners appealed the decision and the court ruled that the board’s ruling was a “manifest abuse of discretion” because it did not “require an expert in statutory construction to read the clear intent” of the ordinance.

The applicant wanted to build a bridge in a floodplain. The township had an ordinance that permitted building a bridge by special exception in floodplains. However, there was another ordinance that stated if a project in a floodplain would raise the level of a 100-year flood, the application would be denied. The applicant argued that these sections, when read together, created ambiguity because it would be impossible to complete the project without raising the water level. The applicant claimed that the ordinance permitted the project on one hand but prohibited it on the other hand.

The court dismissed this claim because the first ordinance, which allowed construction of a bridge in a floodplain, stated that the construction would be permissible so long as the actions “are not prohibited by any other ordinance.” Because the project would have been prohibited by the second ordinance since it would raise the water level, both of the ordinances prohibited the project. This language left no ambiguity unless read though the “distorted prism” of the applicant’s analysis.

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