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The Commonwealth Court of Pennsylvania recently confirmed the standards by which an applicant can obtain a special exception to expand a nonconforming use on its property.

In Mercy v. Zoning Hearing Board of Cross Roads, an applicant filed an application with the Zoning Hearing Board seeking a special exception to expand an existing nonconforming use to include the storage and temporary parking of RVs on its property.  The Commonwealth Court affirmed the grant of the special exception with the following findings:

  • The property was used prior to the effective date of the Ordinance for storage of farm equipment and RVs.
  • The Applicant’s proposed use of the property is similar to the prior nonconforming use because both uses involve equipment storage on the Property, including RVs.
  • Though the board may have erred in finding the Applicant’s proposed expansion of a nonconforming use was required out of a business necessity, such potential error was harmless and does not require a reversal of the trial court’s decision.
  • The Applicant met its burden of satisfying all general and specific standards required to obtain a special exception under sections 504(f) and 624 of the Ordinance.

This case is helpful for applicants who desire to expand a nonconfoming use on their property.

If you should have any questions, please feel free to call Rob Gundlach to discuss at (215) 918-3636, or email him at rgundlach@foxrothschild.com.

The Cheltenham Township Community Development Corporation (CTCDC) is seeking proposals from qualified applicants for the acquisition and redevelopment of a 5 acre parcel of land, zoned commercial, and owned by the Township.  CTCDC’s objective is to achieve a redevelopment of the parcel in accordance with the newly passed Township zoning plan.  A successful submission will provide the optimal satisfaction of the following objectives:

  • Generating long term tax revenues for the Township and School District.
  • Minimizing the need for variances or other changes to the Zoning code in order to develop the site.
  • Limited the impact on school population.
  • Willingness to share information with the pubic as part of the process.
  • Enhancing the quality of life for the neighboring community.

Key dates for this submission are as follows:

  • June 1, 2018: Inspect and tour the property.
  • June 15, 2018: Deadline for questions.
  • June 27, 2018: Deadline for submission.

For more information regarding the property, submission requirements and selection process, please see the attached.

If you would like assistance to submit a proposal, or to obtain the required zoning and land use approvals for the project, please contact Rob Gundlach at 215-918-3636 or rgundlach@foxrothschild.com.

The Commonwealth Court of Pennsylvania recently confirmed the standards by which an applicant is entitled to special exception approval, which could help applicant’s in preparing their cases before a zoning board.

In Monroe Land Investments v. Zoning Board of Adjustment and the City of Philadelphia, et al, 2018 WL 1462211, the Commonwealth Court affirmed the decision of the Philadelphia County Court of Common Pleas to reverse the City of Philadelphia Zoning Board of Adjustment’s decision to deny a request for a special exception for a take-out restaurant. In this case, the applicant, Monroe Land Investments (“Monroe”) filed an application with the City of Philadelphia Department of Licenses and Inspections (“L&I”) requesting a zoning/use registration permit to use its property as a Dunkin’ Donuts. Dunkin’ Donuts is classified as a take-out restaurant under the Philadelphia Zoning Code, which requires special exception approval from the Zoning Board of Adjustment (the “ZBA”) under the CMX-2 zoning regulations.

At the hearing before the ZBA, Monroe presented expert witnesses to provide testimony to satisfy the criteria to obtain a special exception. Several interested parties appeared at the hearing and presented testimony in opposition to the proposed Dunkin’ Donuts. The ZBA denied Monroe’s request for the special exception. Monroe appealed the ZBA’s decision to the Court of Common Pleas. The Court of Common Pleas reversed the ZBA’s decision and directed L&I to issue the zoning/use permit for the Dunkin’ Donuts. One of the interested parties appealed the Court of Common Pleas’ decision to the Commonwealth Court. The Commonwealth Court affirmed the Court of Common Pleas’ decision and made the following findings:

  • A special exception is not an exception to the zoning ordinance, but a use permitted conditionally, the application for which is to be granted or denied by the zoning hearing board pursuant to express standards and criteria.
  • The applicant bears the initial burden of proving that the proposed use will not detrimentally impact the neighborhood beyond what is normally expected from the proposed use pursuant to certain criteria.
  • If there are any objectors, they have the burden of proving that the proposed use will detrimentally impact the health, safety and welfare of the neighborhood beyond what is normally expected from the proposed use. In order to meet their burdern, they cannot merely speculate as to possible harm, but must show “a high degree of probability that the proposed use will substantially affect the health, safety and welfare of the community greater than what is normally expected from that type of use”. The burden placed on the objectors is a heavy one.
  • In this case, the applicant provided expert testimony, which was unrebutted; whereas, the objectors only provided speculative comments and opinion, without any expert testimony, which were insufficient to meet their burden.

The Commonwealth Court pointed to the fact that since the objectors only provided their opinion as to the impact the use would have on the neighborhood, without any expert testimony to rebut the applicant’s expert testimony, there was not substantial evidence in the record by which the ZBA could have been persuaded that the project is substantially likely to cause a detrimental impact on the neighborhood’s health, safety and welfare beyond that which might normally be expected from other take-out restaurants.

It is interesting for applicants to note that the standard is not whether the use itself would have a detrimental impact on the neighborhood, but whether the proposed use would have more of an impact compared to what would normally be expected for that type of use. In Monroe, the Commonwealth Court determined that the standard by which the ZBA was to consider the special exception was whether the proposed Dunkin Donuts would have more of an impact compared to other take-out restaurants. This case is helpful in preparing applicants in presenting their case for a special exception from a zoning board

Should you have any questions regarding obtaining special exceptions, or other zoning related questions, please feel free to contact me at cnase-poust@foxrothschild.com.

In the case of Polaris v. Fayette County Zoning Hearing Board, the Commonwealth Court reversed a decision of the Court of Common Pleas and the underlying zoning hearing board to deny an application to use a property as a methadone clinic. In this case, Polaris argued that the ZHB erroneously denied its special exception application on the grounds that Polaris had not met its burden of proof and that the proposed clinic would adversely affect the health, safety and welfare of the surrounding area, specifically due to traffic.

As to the burden of proof argument, the Commonwealth Court started its opinion by noting that both the ZHB and the trial court “confusingly conflate the issues of burden of proof, burden-shifting, and sufficiency of evidence in their arguments and analysis” and then went on to cite the following black letter law as to applications for special exceptions:

1. A special exception is not an exception to a zoning ordinance, but rather a use that is expressly permitted absent a showing of detrimental effect on the community.

2. An applicant for a special exception has the burden of proving that the proposed use satisfies the objective requirements of the ordinance for the grant of a special exception.

3. Once the applicant satisfies this burden, a presumption arises that the use is consistent with the health, safety, and general welfare of the community.

4. The burden then shifts to the objectors to establish the proposed use will have a detrimental effect on the community.

The Commonwealth Court noted that the uncontradicted evidence in the record established that Polaris met the objective requirements of the ordinance and thereby create a presumption that the proposed use was consistent with the health, safety, and general welfare of the community and, as such, both the ZHB and the trial court erred in its determination that Polaris did not meet its initial burden of proof to obtain the special exception.

As to the adverse traffic conditions argument, the Commonwealth Court found that the record showed that Polaris established that the proposed use met the requirements of the ordinance and further noted the following:

1. An increase in traffic alone is insufficient to justify the refusal of an otherwise valid land use.

2. The fact that a proposed use would contribute to projected traffic congestion primarily generated by other sources is not a sufficient basis for denying a special exception.

3. To warrant a denial, there must be not only a likelihood but a high degree of probability that the traffic increases will pose a substantial threat to the health and safety of the community.

Here, the Commonwealth Court confirmed that the record contained no credible evidence whatsoever that the proposed use would generate traffic that would rise anywhere close to pose a substantial threat to the health, safety, and general welfare of the community.

This case again confirms that zoning hearing boards cannot simply dismiss applications for special exceptions for uses that they and the protestors might find objectionable, including methadone clinics.

If you should have any questions as to the law to obtain special exception or conditional use approvals, please contact Rob Gundlach at 215-918-3636, or rgundlach@foxrothschild.com.

In a recent case decided by the PA Commonwealth Court, titled Toll Brothers and Orleans Homebuilders v. Upper Uwchlan Township, the court upheld the decision of the Court of Common Pleas and the Board of Supervisors to deny the developer’s request to amend a previously granted conditional use approval to eliminate a condition requiring developer to construct an internal roadway.  Developer presented testimony as to reasons for this amendment, including the preservation of additional woodlands, wetlands, steep slopes and floodplains.  However, developer acknowledged that the elimination of this roadway would save an estimated $730,000 in site costs.  At the underlying hearing, residents who had purchased homes in the community requested party status and objected to changing this condition.  These residents argued, among other things, that the road connection was needed and that developer represented it to them when they purchased their homes that this road connection would be constructed.

In its decision, the Commonwealth Court cited the Ford v. Caernarvon Township case, whereby a property owner requested to remove a deed restriction preventing further subdivision of their land that the ZHB had attached to its grant of a variance.  The court noted that an owner that wants to obtain a modification of a condition can obtain relief if they can establish the following:

  1. Either grounds for a traditional variance or changed circumstances which render the condition inappropriate; and
  2. Absence of injury to the public interest.

In the Ford case, the court concluded that the property owner demonstrated a clear change in circumstances to allow the removal of the deed restriction condition; because the newly created lots would conform to all ordinance requirements.  The court also found that the removal of the restriction would not result in a harm to the public.

Unfortunately, in the Toll/Orleans case, the court found that developer failed to identify any change in circumstances that would justify the elimination of the condition to build the extended roadway.  The court also found that developer failed to demonstrate that the elimination of the condition to extend the roadway would not harm the public interest.

This case is another lesson in a long line of cases for developers to carefully review any conditions imposed on the grant of their development approvals and, if not acceptable, to timely appeal the conditions to the Court of Common Pleas.

Please contact Rob Gundlach at 215-918-3636, or RGundlach@FoxRothschild.com, for assistance with how to amend conditions of approval or other matters relating to zoning and land use approvals.

The Bucks County Planning Commission has increased its filing fees for 2018.  The base fees for residential subdivisions, land developments and conversions remain the same, but the additional lot multiplier fees have been increased by $5 for each lot/unit.  The base fees for nonresidential land developments remain the same, but the multiplier fees for developments under 5,000 square feet has increased by $5 per 1,000 square foot of gross floor area and, for developments over 5,0000 square feet, the overall filing fee has increased to $0.15 per square foot.  The filing fees for nonresidential  subdivisions have increased by $5, and the filing fees for curative amendments and rezoning petitions have each increased by $500.

If you should have any further questions about the new review fees, please contact Robert W. Gundlach, Jr. at (215) 918-3636 or rgundlach@foxrothschild.com.

Many times, at hearings to obtain either special exceptions or conditional use approvals, applicants, for one reason or another, are under the impression that they simply have to call one or two witnesses to confirm, in a cursory manner, compliance with the requirements for the requested relief. Unfortunately, that type of “short cut” approach can come back to bite the applicant in the you know what. A recent case, titled Appeal by Grande Land, LP v. Manheim Township Zoning Hearing Board, is good instruction on the subject.

When presenting evidence at a hearing to confirm compliance with the requirements for a special exception or conditional use, it is important to bring the proper witnesses and documentation to confirm compliance with each and every requirements. Simply “saying that you will comply” or pointing to compliance on a plan, is not always the same as proving compliance in the hearing context. In Grande Land, the applicant filed an application for a special exception to construct an apartment complex containing 72 apartment units. At the hearing, the applicant called a surveyor to testify that all of the zoning ordinance requirements were satisfied. The ZHB denied the special exception on the basis that the applicant failed to submit evidence confirming (a) DEP’s approval of the proposed sewage disposal system, (b) the maximum length of each building did not exceed 128 feet, and (c) compliance with the 25% open space requirement. The trial court upheld the ZHB’s decision to deny the special exception and the Commonwealth Court then reviewed the matter. The Commonwealth Court found that the testimony of record did satisfy the requirements for a sewage system in a form to be approved by DEP and that the length of proposed buildings did not exceed 128 feet; however, the Commonwealth Court upheld the ZHB’s denial of the application for the special exception on the basis that the applicant failed to submit proper evidence confirming that the plan complied with the open space requirements. Specifically, the Commonwealth Court pointed to some very poor testimony by the surveyor where he stated that he could not “recall the specific requirements of the Ordinance or whether the detention basins were included as open space in the calculations.” That testimony, in and of itself, was the “kiss of death” to confirm compliance with the open space requirements.

We all know that hindsight is 20/20, but in this case, the applicant should have continued the hearing so that his surveyor, or, better yet, a licensed civil engineer, could have completed an open space plan and all calculations related thereto, then submitted such plan and calculations into the record at the continued hearing.

Interestingly, in reviewing this case, I recall an article that I wrote some eight years back on the same topic following a similar case rendered by the Commonwealth Court. My advice in that article, as in this article, is the same, as counsel for an applicant needs to have the proper witnesses and exhibits to show compliance with each and every requirement with their application for a special exception or conditional use. If at any point during the hearing, there is a question as to whether or not the application is in compliance with any such requirements, an applicant’s counsel should consider requesting a continuance in order to obtain the proper testimony and/or documentation to confirm same. Otherwise, an applicant can waste an awful lot of time and money chasing its tale on an appeal up to the Commonwealth Court and/or filing a new application after a denial is upheld as it was in this case.

If you should have any questions concerning this topic, or other zoning and land use matters, please feel free to contact Rob Gundlach at (215) 918-3636 or rgundlach@foxrothschild.com.

In June of this year, Councilwoman Maria Quinones-Sanchez of Philadelphia’s City Council introduced Ordinance No. 170678 to require all new and renovated residential development projects in the City of over 10 units to include at least 10% of the project units as “affordable”.  Under the terms of the ordinance, at least 25% of the affordable units have to exists on the project site, while the other 75% can either be built elsewhere or be addressed via a payment into the City’s Housing Trust Fund.  Since the ordinance’s introduction in June, Councilwoman Quinones-Sanchez has been in dialogue with a number of stakeholders, with a hope to have the ordinance brought to a vote in City Council prior to the end of 2017.  The proposed ordinance addresses both new projects and renovations which will be defined to cover alterations costing in excess of $7,000 per housing unit and requiring a zoning permit.  The ordinance also provides for limited increases in density, as implied compensation to developers which provide affordable housing.

Philadelphia, Pennsylvania skylineSupporters of the ordinance argue that it is required to address significant gaps within the City for affordable housing for the many poor residing in Philadelphia, and that the proposed ordinance fairly balances the interests of developers with broader public policy requirements.  Those who object, which includes the local chapter of the Building Industry Association, argue that the requirements are erroneous and inappropriately place upon residential real estate developers the obligation to address a policy concern better met by the broader body politic.

Among the potential variables, and areas that may be subject to amendment in the ordinance, are how many units of affordable housing should be required, whether they should be required on or off site, the extent to which such requirement should apply to renovations, and what corresponding inducements or benefits should be made available to developers in the character of increased density or other types of cost offsets.

In the City of Philadelphia, developers must come to terms with several issues which can increase development costs, including a variety of zoning requirements to provide parking, requirements in certain circumstances to provide economic opportunity plans in connection with projects, and a local norm in Center City development of utilizing union labor.  Some are concerned that the additional imposition of required affordable housing would tip the balance and end or significantly curtail residential development.

In a city with an active housing authority and other public or quasi-public organizations promoting housing opportunities for the poor, a question is presented regarding the appropriateness of achieving a laudatory public policy goal through the imposition of requirements upon a small sector of private business owners.  If the objective of providing housing to the poor is one adopted by local government, should it not be addressed directly via explicit taxing and spending policies, instead of indirectly through the zoning code?  This is the question which will be addressed in hearings and debates soon to occur in Philadelphia City Council.

 

On November 2, 2017, at 7:30 p.m., the Warrington Township Planning Commission intends to review an updated Comprehensive Plan for the Township. After this Comprehensive Plan is reviewed by the Planning Commission, it will then be sent, along with the Planning Commission’s recommendation, to the Board of Supervisors for review and action. Such action is likely to be taken before the end of the year. After the new Comprehensive Plan is adopted, the Board of Supervisors have indicated their willingness to consider certain revisions to the Township zoning ordinance and the zoning map. The draft Comprehensive Plan is available for review on the Township website.

If you should have any further questions about the process, please contact Robert W. Gundlach, Jr. at (215) 918-3636 or rgundlach@foxrothschild.com.

 

In the case of Cardinal Crossing v. Marple Township, the PA Commonwealth Court was faced with the issue of whether a developer, who spends substantial funds on a development, in reliance on statements of support from a committee formed by the Township (which included Township officials), can recover damages from the Township when the Board of Commissioners did not adopt the requested zoning amendment for the proposed project to proceed forward. The Commonwealth Court, in finding that unofficial action by Township officials cannot bind a Township to take legislative action, upheld the decision of the Court of Common Pleas and found in favor of the Township and dismissed developer’s complaint.

In this case, a developer entered into an agreement of sale with the Archdiocese to purchase property subject to developer obtaining a rezoning to allow the development of 1,100,000 square feet of commercial/office space and 375 townhomes. However, this agreement of sale provided that the sum of $5,000,000 would become non-refundable at the end of the due diligence period. The developer started meeting with representatives of the Township in August of 2014, but did not file its formal application for zoning relief until May 21, 2015; less than 30 days prior to when its $5,000,000 deposit would become non-refundable. The Township’s Planning Commission voted to recommend denial of the requested zoning relief and the Board of Commissioners then voted to deny the application for rezoning in May of 2016 (well after the deposit went non-refundable) and less than 60 days before its agreement of sale with the Archdiocese was scheduled to expire.

In the complaint, developer claimed that the Township representatives, with whom it met, repeatedly represented that the Township wanted the property developed as proposed and that the Township knew or should have known that developer would rely upon these representations; and it relied upon these representations to execute the agreement of sale, pay the deposits and prepare the application for the requested zoning relief. Evidently, the developer spent more than $7,000,000 between its soft costs and the deposit.

The Court of Common Pleas held, in ruling in favor of the Township, that no statement of these representatives could rise to the level of an inducement or promise by the Township to grant the requested zoning relief and that developer knew or should have known that the enactment of a zoning amendment was a legislative act that would be binding only upon a vote of the Board of Commissioners. The Commonwealth Court held that there was no official action by the Township that the developer alleged in its complaint that caused it to act to its detriment.

The lesson here is that developers cannot rely upon statements of support by Township representatives (even members of the governing body) outside of a public hearing and should formally file its petition for zoning relief at the earliest possible date and push that application for a decision by the governing body prior to developer’s deposit “going hard” under its agreements of sale. Developers should also insure that they have sufficient time under their agreement of sale to work with all applicable parties and hold the required hearings. If not, developers should “walk away” before they get in too deep as the developer did in this case.

For more information on the subject, please feel free to contact Rob Gundlach at (215) 918-3636 or rgundlach@foxrothschild.com.