Argued March 10, 2014
Appealed from No. 03964 CV 2012 LU. Common Pleas Court of the County of Dauphin. Lewis, J.
Ronald M. Lucas, Harrisburg, for appellant.
Matthew J. Crème, Jr., Lancaster, for appellee.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.
P. KEVIN BROBSON, Judge.
Appellant Williams Holding Group, LLC (Developer) appeals from an order of the Court of Common Pleas of Dauphin County (trial court). The trial court affirmed the decision of the Board of Supervisors of West Hanover Township (Township), denying Developer's application for approval of a proposed stormwater facility as a conditional
use. We reverse the trial court's order.
Developer owns a tract of land of approximately twenty acres in West Hanover Township (Property). The Property is located in the Township's Neighborhood Commercial Zoning District (NC). The Township's Zoning Ordinance (Ordinance) also provides for the establishment of environmental protection overlay districts (EPODs) throughout the Township. There are several varieties of EPODs that may be established under the Ordinance, including stream protection overlay districts (SPODs), hillside and slope protection overlay districts (HSPODs), and wetland protection overlay districts (WPODs). The Ordinance provides for certain uses proposed within the various EPODs as conditional uses. The particular use for which Developer sought conditional use approval is a stormwater facility to be used in conjunction with Developer's proposed development of the Property primarily as a townhouse community.
The proposed stormwater facility consists of the placement of a stormwater conveyance pipe thirty-six inches in diameter within and enclosing an approximate 369-foot length of an unnamed tributary of the Manada Creek. The entire length of this enclosure lies within an SPOD and HSPOD. Essentially what appears to be involved in the proposed conditional use is the enclosure of the waterway/stormwater conveyance and the placement of soil around and above the stormwater pipe such that the area, which is presently essentially a streambed with slopes on both sides, would become a level area with an embedded stream/stormwater conveyance pipe running under a roadway and/or driveways within the proposed development for the above-described distance. Thus, if Developer were permitted to construct the stormwater facility, the construction would eliminate part of the SPOD and HSPOD in that area. As discussed below in fuller detail, this result lies at the heart of the Board's decision to deny Developer's request for conditional use approval.
I. RELEVANT PROVISIONS OF THE ORDINANCE
Section 195-78 of the Ordinance sets forth the following general purposes of EPODs:
A. To protect drainageways and streams from development impacts.
B. To minimize negative impacts from development on hillside and slope areas.
C. To protect water features from development impacts.
D. To preserve prime agricultural soils.
E. To protect existing wooded areas.
F. To minimize wetland impacts.
G. To preserve water quality.
H. To enhance water infiltration.
The Ordinance provides the following narrative comment regarding SPODs:
The Comprehensive Plan identifies and recognizes streams and the natural areas around them as important hydrological and environmental assets. It is the intent of this section to provide appropriate standards for delineating and preserving natural and man-made waterways. These regulations are provided to protect wildlife; reduce exposure to high water and flood hazards; preserve existing vegetation along waterways;
minimize the negative effects on waterways from agricultural and development related erosion; minimize scenic degradation; and protect water quality by reducing and cleaning stormwater runoff.
Section 195-79 of the Ordinance. The Ordinance also provides the following narrative regarding HSPODs:
The Comprehensive Plan recognizes steep slopes and hillsides as unique areas. Slope areas are fragile and susceptible to erosion, landslides, mudslides, degradation of their natural vegetation and increased flooding using conventional development practices. It is the intent of this section to provide reasonable standards for hillside development that guide development away from steep areas; minimize grading and other site preparation in steep areas; provide safe means for ingress and egress while minimizing scarring from hillside construction; preserve the natural conditions in steep areas; and prevent flooding and the deteriorating effects of erosion to streams and drainage areas.
Section 195-80 of the Ordinance. Although it cannot be said that these general provisions are solely aimed at avoiding the environmental harms that often result from unchecked construction in areas where the natural tendency of water is to find the closest point to sea level, it is clear from a review of the provisions that the primary goal of the SPOD language is to preserve waterways. As to the HSPOD language, the entire paragraph refers almost entirely to concerns that arise from flooding, erosion, landslides, and was also adopted specifically to " prevent flooding and the deteriorating effects of erosions to streams and drainage areas," as stated in the last sentence. Thus, the harms that this language apparently seeks to avoid center on potential damage to waterways. In this case, although the proposed construction will enclose the waterway for a certain distance, there appears to be no dispute that the waterway will continue as before and will discharge into the Manada Creek.
Both the SPOD and HSPOD Ordinance provisions permit essentially the same permitted uses and conditional uses. The common permitted uses are:
(1) Agricultural uses, such as general farming, pasture grazing, outdoor plant nurseries, horticulture, truck farming, no-till planting and wild crop harvesting.
(2) Common open space.
(3) Educational or scientific use not involving buildings or structures.
. . . .
(4/5) Trail access to the stream or drainageway and trails in linear parks.
(5/6) Passive recreational areas not involving structures.
(7) Accessory residential uses, such as gardens, play areas or fences.
(7/8) Wildlife preserves.
Section 195-79 (C)(1)-(8) of the Ordinance (relating to SPODs) and Section 195-80(B)(1)-(8) of the Ordinance (relating to HSPODs).
The conditional uses allowed in SPODs and HSPODs are also essentially identical:
(1) Accessory commercial uses, such as picnic areas or fences.
(2) Underground public utilities.
(3) Walking bridges
(4/5) Driveway crossings.
(5/6) Any other use requiring a federal or state encroachment permit.
Section 195-79(D)(1)-(6) of the Ordinance (relating to SPODs) and Section 195-80(C)(1)-(5) of the Ordinance (relating to HSPODs) (emphasis added). The conditional use at issue in this matter, which is allowed in both SPODs and HSPODs, is " [a]ny other use requiring a federal or state encroachment permit." Id.
We quote below the two provisions of the Ordinance that were of primary significance to the Board's and the trial court's decisions. The first provision we quote is relevant solely in HSPODs and relates to " land removal" in such districts. The second provision is from the article of the Ordinance pertaining to conditional uses in EPODs.
Section 195-80(E) of the Ordinance, the provision specifically applicable to HSPODs, provides:
Up to 1/4 of the land with slopes greater than 25%, as defined by § 195-72A, may be removed or altered only when such slopes are isolated, small or otherwise occur as knolls which do not adversely affect the design of the plan or open space subdivisions or land developments.
Section 195-182(A)(1) of the Ordinance, contained within the general conditional use provision applicable to EPODs, provides:
Any construction within any EPOD shall be minimally invasive and utilize best management practices, as defined by [the Pennsylvania Department of Environmental Protection (DEP)] and [the United States Army Corps of Engineers (COE)].
For the purpose of providing context for review of the entire conditional use provisions, we note that Section 195-182(H) of the Ordinance provides additional guidance relating to " [c]ommunity improvements, such as stormwater facilities and roadways:"
(1) Where practicable, crossings of EPODs shall be located in areas of minimal width of EPOD.
(2) All roadway crossings of EPODs shall incorporate pedestrian sidewalks and curbs into the design.
(3) All other roadway design requirements in Ch. 173, Subdivision and Land Development, shall apply.
(4) Guide rails or fences shall be incorporated in the areas of actual encroachment into the EPOD.
(5) Any areas of fill associated with a stormwater facility shall be located outside of the EPOD.
(6) Stormwater outlet design shall be done in such a manner as to minimize any impact on the EPOD.
The Ordinance also provides that the identification and establishment of EPODs occurs at the time of subdivision or land development, or when a property owner seeks a zoning permit. See Section 195-79(E)(1) of the Ordinance (relating to SPODs); Section 195-80(D)(1) of the Ordinance (relating to HSPODs) (" The [SPOD/HSPOD] shall be established at the time of subdivision or land development or the application for a zoning permit" ). Although the Ordinance does not specifically provide that a developer or applicant has the responsibility to affirmatively identify and " establish" an EPOD, the Ordinance
certainly suggests that the initial responsibility rests with an applicant, presumably subject to review and acceptance by the Township or its zoning officer (in the case of a zoning ...