Regulation of Particular Uses

KS Dev. Co., L.P. v. Lower Nazareth Twp.

A claim that zoning restrictions render development of some use economically infeasible is a claim of de facto exclusion, not de jure exclusion. Where de facto exclusionary claims exist, analysis under Surrick is appropriate. In addition, where a zoning ordinance defines the term “apartment,” and other uses are individually restricted so as to preclude inclusion as an apartment nor included in the definition of apartment, the other uses are not apartments. However, a use permitting residential multifamily/apartment dwelling on upper floors and commercial uses on the first floor is an apartment use.

KS Dev. Co., L.P. v. Lower Nazareth Twp., 149 A.3d 105 (Pa. Commw. Ct. 2016)

Date of Decision: 5/17/17


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DiMattia v. Zoning Hearing Bd.

To determine whether a use is considered to be “customarily found” and “incidental” to the permitted use, it is proper to consider “both the type and intensity of the use and whether uses of that type and intensity are akin to uses that are customarily found or would reasonably be expected with that primary use in the area where the property is located.” A use cannot be subordinate to a residential use if the use occurs on a property where the persons engaging in it do not reside. Similarly, a use cannot contribute to the comfort, convenience, or necessity of the occupants where the use does not benefit occupants, but rather benefits other persons engaging in the use.

DiMattia v. Zoning Hearing Bd., 168 A.3d 393 (Pa. Commw. Ct. 2017)

Date of Decision: 8/9/17


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Marchenko v. Zoning Hearing Bd. of Pocono Twp.

Where an ordinance is vague or ambiguous, zoning hearing boards have a duty to construe the words of an ordinance broadly to ensure that any doubt in interpreting the zoning ordinance is resolved in favor of the landowner and the least restrictive use of the land.

Marchenko v. Zoning Hearing Bd. of Pocono Twp., 147 A.3d 947 (Pa. Commw. Ct. 2016)

Date of Decision: 9/19/16


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Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd.

Restrictions in zoning ordinances must be interpreted narrowly and must not be construed to restrict the use of land by implication. Ambiguities in zoning ordinances must be construed in favor of landowner.

Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., 164 A.3d 633 (Pa. Commw. Ct. 2017)

Date of Decision: 6/21/17


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Shvekh v. Zoning Hearing Bd.

Where an ordinance is vague or ambiguous, zoning hearing boards have a duty to construe the words of an ordinance broadly to ensure that any doubt in interpreting the zoning ordinance is resolved in favor of the landowner and the least restrictive use of the land.

Shvekh v. Zoning Hearing Bd., 154 A.3d 408 (Pa. Commw. Ct. 2017)

Date of Decision: 2/6/17


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Marshall v. Charlestown Twp. Bd. of Supervisors

Where an ordinance allows for conditional use approval for proposed uses that are “educational” in nature but does not define the term, the definition is broad. However, when determining if a use is “educational,” courts should focus on the primary function of the facility.

Marshall v. Charlestown Twp. Bd. of Supervisors, 169 A.3d 162 (Pa. Commw. Ct. 2017)

Date of Decision: 8/29/17


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