Zoning Validity Challenges

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: 11/4/16


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London v. Zoning Bd. of Phila.

Legislation is presumed to be constitutional, therefore, constitutional challengers must overcome a heavy burden to prevail. A challenged provision is invalid, as being overbroad, if it prohibits a substantial amount of protected speech. Provisions are only void for vagueness if “persons of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.”

London v. Zoning Bd. of Phila., 173 A.3d 847 (Pa. Commw. Ct. 2017)

Date of Decision: 11/15/17


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Dimattio v. Millcreek Twp. Zoning Hearing Bd.

In order to prove illegal spot zoning, the challenger must show the lands surrounding the property at issue are similar in character to the parcel that is subject to different zoning treatment.

Dimattio v. Millcreek Twp. Zoning Hearing Bd., 147 A.3d 969 (Pa. Commw. Ct. 2016)

Date of Decision: 9/21/16


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Delchester Developers, L.P. v. Zoning Hearing Bd.

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.

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

Date of Decision: 5/9/17


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Davis-Haas v. Exeter Twp. Zoning Hearing Bd.

Where a procedural validity challenge is filed within 30 days of an ordinance’s effective date, the challenger need only prove the municipality failed to strictly comply with the required procedures set forth in the Pennsylvania Municipalities Planning Code (MPC). Also, a challenger does not lose standing for a procedural validity challenge where the challenger sells a portion of the relevant property but maintains an ownership interest in the property during the proceedings.

Davis-Haas v. Exeter Twp. Zoning Hearing Bd., 166 A.3d 527 (Pa. Commw. Ct. 2017)

Date of Decision: 7/12/17


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Appeal of Chester Cty. Outdoor, LLC

Where a proposal is not appended to a validity challenge of a zoning ordinance, the one-year time limitation to file for a building permit under Section 10916(g) of the Pennsylvania Municipalities Planning Code (MPC) is not applicable. Further, a trial court does not have jurisdiction to grant site specific relief if the developer did not first file an appropriate application with the local municipality. Finally, while a developer must first submit its request for site specific relief to a municipality, the trial court is the ultimate decision maker and has broad discretion as to its review of the record and additional evidence.

Appeal of Chester Cty. Outdoor, LLC, 167 A.3d 280 (Pa. Commw. Ct. 2017), aff’d. Appeal of Chester Cty. Outdoor, LLC, 2018 Pa. LEXIS 545.

Date of Decision: 7/28/17


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