Delchester Developers, L.P. v. Zoning Hearing Bd., 161 A.3d 1081 (Pa. Commw. Ct. 2017)

Where a stormwater ordinance is limited to regulating stormwater, zoning hearing boards do not have jurisdiction under the Pennsylvania Municipalities Planning Code (MPC) to hear substantive validity challenges because such an ordinance is not a land use ordinance as defined by the MPC. Also, municipalities may except eased and constrained areas of a lot from the calculation when determining the percentage of the lot that is developable.
Case Details:

Developer sought zoning relief for two lots located within the Township’s Groundwater Protection District. Developer submitted a preliminary plan application to develop the two lots separately. In order to execute its plan, Developer sought variances and special exceptions, and also brought challenges to the procedural validity of several provisions of the Stormwater Management Ordinance (SWMO). The Township’s Zoning Hearing Board (ZHB) denied the relief sought by Developer and Developer appealed to the trial court. The trial court affirmed the ZHB’s decision.

On appeal to the Commonwealth Court, Developer argued (1) the trial court erred by finding the ZHB had no jurisdiction to decide the substantive validity challenges to the SWMO and (2) the trial court erred by finding the “net out” provision, under which the Township excepted eased and constrained areas of a lot when determining the percentage of a lot that is developable, to be constitutionally valid.

With respect to the first argument, the Commonwealth Court noted that under Section 909.1(a)(1) of the MPC, zoning hearing boards have jurisdiction to hear substantive validity challenges to land use ordinances only. To determine whether an ordinance can be called a land use ordinance, the Court had to look first to the purpose of the ordinance, and then had to decide whether the ordinance stayed within the limits of its purpose. The SWMO did not meet the definition of a land use ordinance because its purpose was to regulate stormwater through and within the Township. The regulations or rules therein were limited to that purpose. Since the ordinance was not a land use ordinance, the ZHB had no jurisdiction to decide the substantive validity challenge. Rather, such an action must be brought in the court of common pleas.

Developer’s second argument – that the “net out” provision in the Township’s zoning ordinance violated its substantive due process rights – likewise failed. The net out provision excluded existing and proposed streets, easements, and stormwater management areas from the definition of “lot area.” The zoning ordinance required Developer to grant the Township an easement for inspection and maintenance of its stormwater facilities. The Court determined the net out provision combined with the above zoning ordinance requirement was restrictive; however, it was substantially related to the public health, safety, and welfare, which made it a valid exercise of the Township’s police powers. The Township has authority to mitigate harm traced to improper stormwater management. Here, the lots were in an environmentally sensitive location which required stringent rules for stormwater management so that harm to that area was mitigated. Further, the provisions did not violate substantive due process or constitute a taking because “the ‘net out’ provision furthers the Township’s legitimate interest in the mitigation of the hazards posed by stormwater and contains the essential nexus and rough proportionality to the impact of [the Township’s] proposed development on that interest….”

Date of Decision: 5/9/17

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