161 A.3d 1081
Pa. Commw. Ct.2017Background
- Delchester Developers sought to develop two adjacent lots (one Commercial-Interchange, one Industrial) within London Grove Township’s Groundwater Protection District (Cockeysville Marble area) with a drive‑thru bank, restaurant, parking, and an internal access drive linking the lots.
- The Township’s Zoning Ordinance (ZO) contains a "net out" definition of net lot area that excludes easements, constrained lands, and stormwater infiltration areas from buildable area; the Stormwater Management Ordinance (SWMO) limits infiltration device head to two feet in the Cockeysville Marble area.
- Delchester applied to the Zoning Hearing Board (ZHB) for variances and special exceptions and challenged ordinance provisions; ZHB denied relief in a detailed 2014 decision (affirming an earlier 2008 denial of an internal access drive).
- The Court of Common Pleas affirmed the ZHB; Delchester appealed to the Commonwealth Court raising four legal issues (ZHB jurisdiction over SWMO validity, validity of the "net out" provision, meaning of "site" vs "lot," and whether the proposed access is an "internal access drive").
- The Commonwealth Court affirmed: (1) SWMO is not a "land use ordinance" under the MPC so the ZHB lacked jurisdiction to hear a substantive validity challenge; (2) the "net out" provision survives substantive due process and takings (Nollan/Dolan) scrutiny; (3) in this case "site" is effectively synonymous with "lot" because each site Delchester sought to develop was a single lot; (4) the proposed access is an "internal access drive," subject to the more restrictive setback, and the ZHB’s traffic/stacking findings supported denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ZHB jurisdiction to hear substantive validity challenge to SWMO | SWMO is a land use ordinance (it regulates stormwater facilities as part of land development) so ZHB has jurisdiction under MPC §909.1 | SWMO regulates activity (stormwater), not land use within MPC Articles IV–VII; under Second Class Township Code challenges must be in common pleas | SWMO is not a land use ordinance; ZHB lacked jurisdiction; challenges to SWMO must be brought in common pleas |
| Validity of ZO "net out" (net lot area excludes easements/constrained lands) — substantive due process and taking concerns | "Net out" confiscates buildable area (exacerbated by 2‑ft infiltration limit) and unreasonably prevents development; denies due process/takings relief | Provision reasonably protects constrained lands, controls density, and follows engineering best practices for Cockeysville Marble; any burden is proportional | "Net out" is substantially related to legitimate public health/safety/welfare goals; satisfies essential nexus and rough proportionality (no unconstitutional condition/taking) |
| Meaning of "site" in impervious coverage limit (ZO §27‑1406.7) | "Site" is broader than "lot"; both lots should be treated together as one site so impervious limits apply to combined area | Each proposed development is a separate site because Delchester did not merge lots and intends separate development; thus limits apply per lot | Where each site consists of a single lot, "site" and defined "lot" operate synonymously; impervious limits apply per lot as applied here |
| Classification of proposed access as "driveway" v. "internal access drive" (setback implications) | The access is a driveway (allowed in setback) | The access is an internal access drive (serves multiple buildings/links lots) and is subject to larger setback; also ZHB found traffic/stacking harms | The access is an "internal access drive" under ZO definition; even if treated as driveway, ZHB’s traffic/stacking findings (supported by credible engineering testimony) justified denial |
Key Cases Cited
- Land Acquisition Servs., Inc. v. Clarion Cnty. Bd. of Comm’rs, 605 A.2d 465 (Pa. Cmwlth. 1992) (ordinance whose primary objective is to regulate an activity rather than land use is not a land use ordinance under the MPC)
- C & M Developers, Inc. v. Bd. of Supervisors, 820 A.2d 143 (Pa. 2002) (upholding agricultural‑preservation limits but striking provisions that impermissibly restrict development based on private preference)
- Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (U.S. 1987) (exactions require an essential nexus to the government interest)
- Dolan v. City of Tigard, 512 U.S. 374 (U.S. 1994) (exactions must satisfy both essential nexus and rough proportionality)
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (U.S. 2005) (distinguishing takings and validity inquiries; takings analysis presumes a valid regulatory purpose)