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Delchester Developers L.P. v. Zoning Hearing Board of the Township of London Grove

Commonwealth Court of Pennsylvania

May 9, 2017

Delchester Developers, L.P., Appellant
v.
Zoning Hearing Board of the Township of London Grove and London Grove Township and Dominic DiFilippo, Ricco DiFilippo, and Lynn Soliwoda-DiFilippo

          Argued: October 17, 2016

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOSEPH M. COSGROVE, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

          OPINION

          JAMES GARDNER COLINS, Senior Judge.

         Before this Court are the consolidated appeals of Delchester Developers, L.P. (Delchester) of the December 18, 2015 order and the January 4, 2016 amended order of the Court of Common Pleas of Chester County (Trial Court) affirming the June 27, 2014 decision and order of the London Grove Township Zoning Hearing Board (ZHB) that denied Delchester zoning relief. For the following reasons, we affirm the order of the Trial Court.[1]

         Delchester sought zoning relief for two lots located within the Township's Groundwater Protection District overlaying the Cockeysville Marble area. (ZHB Decision, Findings of Fact (F.F.) ¶37.) The Cockeysville Marble area is a geologic formation that allows water to move through it very quickly and is recognized to be under threat, which led to the adoption of stringent standards regulating stormwater runoff infiltration by the governing body. (Id., F.F. ¶¶35-36.) In recognition of the challenges posed by the Cockeysville Marble area, the Groundwater Protection District was enacted as an overlay district within which "special stormwater management measures are to be taken to ensure recharge, to prevent sinkhole formation, and to protect the groundwater from contamination." (London Grove Township Zoning Ordinance (ZO) § 27-1301; Id., F.F. ¶¶38-39.) In addition to being within the Groundwater Protection District overlay, Delchester's two lots are within two separate underlying zoning districts; one of Delchester's lots spans 2.58 acres in the Commercial-Interchange District (CI District), and the second lot spans 0.89 acres in the Industrial District. (ZHB Decision, F.F. ¶¶2-4.) The two lots have frontage on Old Baltimore Pike, where they are separated by a third parcel unrelated to the proposed development; however, the two lots are adjacent at the rear of the third parcel, forming essentially an irregular shaped horseshoe around the unrelated third parcel. (Id. F.F. ¶¶2, 5, 7.)

         Delchester submitted a preliminary plan application (Plan) to develop the two lots with a drive-thru bank, a restaurant and attendant parking and access points. (Id. F.F. ¶¶6, 7.) The Plan does not propose merger of the two lots and instead seeks to develop the lots separately. (Id. F.F. ¶¶24, 83.) Due to the CI lot's limited frontage on Old Baltimore Pike, which prevents more than one vehicle access point from Old Baltimore Pike onto the lot within the CI District, the Plan proposed an additional vehicle access point and drive on the lot within the Industrial District that would allow vehicle traffic access from the lot within the Industrial District to the parking area located on the CI lot. (Id., F.F. ¶¶7, 25.) The Township of London Grove's (Township) Zoning Ordinance (ZO) does not require an access point in addition to the proposed driveway providing access onto the CI lot from Old Baltimore Pike. (Id., F.F. ¶75.) The Plan does not propose any additional current improvements to the lot within the Industrial District. (Id., F.F. ¶7.) In order to execute its Plan, Delchester sought several variances and special exceptions from the ZHB, and brought challenges to the validity of several provisions of the applicable ordinances, including the ZO, and interpretations of ZO provisions as applied to the lots. Prior to the instant matter, the ZHB issued a 2008 decision, which was not appealed, denying Delchester's request for a special exception to locate an internal access drive crossing the Industrial lot and granting Delchester's request for a variance permitting the CI lot to exceed the maximum impervious surface area by two percent and to provide two percent less than the required open space. (Id., F.F. ¶¶9-11.)

         In the instant matter, the ZHB denied Delchester the relief it sought with a June 27, 2014 decision consisting of 88 findings of fact, 31 conclusions of law, and a lengthy discussion of its reasoning. Delchester appealed the ZHB's decision to the Trial Court. The Trial Court did not take additional evidence and instead relied upon the findings of fact and credibility determinations made by the ZHB. In a lengthy and thorough opinion ably crafted by the Honorable William P. Mahon, the Trial Court affirmed the ZHB.

         On appeal, Delchester raises the following issues for review: (i) whether the Trial Court erred in concluding that the ZHB lacked jurisdiction to decide Delchester's substantive validity challenge to the Township's Stormwater Management Ordinance (SWMO); (ii) whether the Trial Court erred in concluding that the "net out" provision in the ZO is valid; (iii) whether the Trial Court erred in concluding that the word "site" as used in the ZO is synonymous with the word "lot" as that term is defined in the ZO; and (iv) whether the Trial Court erred in concluding that the proposed driveway accessing the Industrial lot is an "internal access drive" as that term is defined in the ZO. Delchester has not challenged any of the findings of fact made by the ZHB that were relied upon by the Trial Court, instead framing the issues for appellate review as pure questions of law.

         I.

         The first issue raised by Delchester concerns the jurisdiction of the ZHB to determine the validity of a challenge to the Township's SWMO. Delchester argues that the SWMO is a land use ordinance and, therefore, the Trial Court erred when it affirmed the ZHB's determination that it did not have jurisdiction to hear Delchester's challenge to the SWMO.

         All local jurisdictions are required to comply with the Municipalities Planning Code[2] (MPC) when enacting land use ordinances within their jurisdictions. While the MPC provides local jurisdictions with authority to enact many substantive provisions in their land use ordinances specific to their community, the MPC contains significant procedural mandates to provide a unified framework throughout the Commonwealth within which local government actors and private property owners can execute planning and development decisions and resolve problems or conflicts that may arise during the development process. As a part of this procedural framework, Section 909.1(a)(1) of the MPC[3] provides the ZHB with jurisdiction to hear substantive validity challenges to land use ordinances. 53 P.S. § 10909.1(a)(1). Pursuant to the MPC, therefore, the ZHB's jurisdiction to hear a challenge to the substantive validity of a local ordinance turns upon whether that ordinance is a "land use ordinance."

         In the instant matter, Delchester argues that the SWMO is a land use ordinance because the SWMO regulates the size, height and location of stormwater facilities constructed as a part of development and because compliance with the SWMO is required for land development approval in the Township. The Township contends that the SWMO regulates activity rather than use and that the purpose of the SWMO is to regulate stormwater and minimize water pollution. The Township argues that the SWMO is not a land use ordinance as that term is defined in Section 107 of the MPC and, therefore, pursuant to Section 1601(f) of the Second Class Township Code (Code)[4], Delchester must bring any challenge to the substantive validity of the SWMO in the court of common pleas. 53 P.S. § 10107; 53 P.S. § 66601(f).

         Section 107 of the MPC defines "land use ordinance" as "any ordinance or map adopted pursuant to the authority granted in Articles IV, V, VI and VII." 53 P.S. § 10107. Article IV of the MPC provides for the adoption of official maps, Article V provides for the adoption of subdivision and land development ordinances (SALDOs), Article VI provides for the adoption of zoning ordinances and maps, and Article VII provides for the adoption of ordinances regulating the development of Planned Residential Developments (PRD). 53 P.S. §§ 10401-10408, 10501-10516, 10601-10621, 10701-10713.

         Section 103 of the Township's SWMO sets forth the statutory authority for the SWMO and provides:

In the enactment of this Ordinance, it is the legislative intent of the Board of Supervisors to implement the policies set forth in various statutes of the state and federal governments, including but not limited to the Pennsylvania Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. Section 691.1, et seq.; the Pennsylvania Storm Water Management Act, Act of October 4, 1978, P.L. 864, No. 167, as amended, 32 P.S. Section 680.1 et seq.; Chapter 93, Water Quality Standards, Title 25, Rules and Regulations, Part I, Department of Environmental Resources, Sub-Part C, Protection of Natural Resources, Article II - Water Resources; Chapter 102 Regulations and Authorities under the Clean Streams Law, 35 P.S. Section 691.20 et seq.; and the Federal Water Pollution Control Act, commonly known as the Clean Water Act, 33 U.S.C. Section 1251 et seq.

(SWMO § 20-103 (emphasis added).) Delchester contends that the language "including but not limited to" demonstrates that the Board of Supervisors did not intend the statutory authority identified in this provision of the SWMO to be exclusive.[5] The MPC is not listed as providing statutory authority for the Board of Supervisors's enactment of the SWMO. However, neither the absence of the MPC in the list of statutory authority nor the inclusion of the language "including but not limited to" is determinative, as "the stated intent of a municipality is not controlling with respect to the question of whether the substance of an ordinance renders it a zoning ordinance." Land Acquisition Services, Inc. v. Clarion County Board of Commissioners, 605 A.2d 465, 469 (Pa. Cmwlth. 1992).

         In Land Acquisition Services, this Court examined whether a hazardous waste ordinance was a "land use ordinance" within the meaning of, and therefore subject to, the MPC, and held that "[b]ecause the ordinance at issue here has as its primary objective the regulation of hazardous waste disposal activity, and because the terms of the ordinance go no further than the 'scope of that goal, ' our conclusion is that the ordinance is not a zoning regulation." Id. at 470. In reaching its holding, this Court reasoned in Land Acquisition that while different types of ordinances may utilize land use tools, such as setbacks, the exclusive hallmark of land use ordinances are provisions that have as their primary purpose the regulation of land pursuant to the powers granted by Articles IV-VII of the MPC, stating "setbacks are not exclusively hallmarks of zoning. The distinctive characteristic of zoning involves zones." Id. at 470 (internal quotation omitted); see also Taylor v. Harmony Township Board of Supervisors, 851 A.2d 1020, 1026 (Pa. Cmwlth. 2004) (the MPC did not apply to ordinance regulating logging and timber, the primary purpose of which was to regulate timber harvesting in slide-prone and flood-prone areas); IA Construction Corporation v. Township of Bradford, Clearfield County, 598 A.2d 1347, 1351 (Pa. Cmwlth. 1991) (ordinance regulating solid waste activity was not a zoning ordinance).

         The analysis held controlling in Land Acquisition is equally applicable to Delchester's substantive validity challenge to the SWMO. In determining whether a local ordinance is a "land use ordinance" within the meaning of the MPC and, therefore, subject to the procedural framework mandated by the MPC, we must look first at the purpose of the SWMO and then examine whether the SWMO stays within the limits to which that purpose extends or goes beyond its scope.

         The purpose of the SWMO is to regulate stormwater traveling through and within the Township. As the Pennsylvania Storm Water Management Act makes clear, it is impossible to regulate the movement of water without also regulating the disturbance of earth. See 32 P.S. §§ 680.11, 680.13. It necessarily follows that the Township's SWMO contains provisions addressing both the natural and the built environment; conversely, the Township's SALDO and ZO contain provisions addressing the movement of water and the impact of the built environment on the natural environment. These shared concerns do not render the SWMO a land use ordinance within the meaning of the MPC. The Township's SWMO is not an official map. The Township's SWMO does not divide all the land within the municipality into zones or regulate specific uses permitted within each zone like a zoning ordinance. Likewise, the Township's SWMO does not provide for the division and redivision of a lot and the location and bulk of structures constructed within those lots like a SALDO. Nor does the SWMO provide for an area of land to be developed as a single large scale entity in accordance with a plan intended to supersede the underlying zoning like a PRD ordinance.

         What the SWMO does do is utilize some of the same techniques as land use ordinances as that term is defined by Section 107 of the MPC to achieve its goal of regulating stormwater. For example, like a land use ordinance, the Township's SWMO regulates the size, height, and location of stormwater facilities and details instances where setbacks or buffers are required. However, the fact that the Township's SWMO utilizes a set of tools also found at work in ZOs and SALDOs does not make all three types of ordinances land use ordinances any more than a socket wrench used by both a mechanic and a plumber means that they are engaged in the same trade. The primary purpose of the Township's SWMO is not the regulation of land pursuant to the powers granted by Articles IV-VII of the MPC. The primary purpose of the Township's SWMO is the regulation of stormwater and the tools it uses to do so does not carry the SWMO beyond the scope of that goal. As we held in Land Acquisition, the use of regulatory tools utilized in land use ordinances does not bring an ordinance addressing a wholly different purpose into conflict with the MPC. Accordingly, the MPC does not provide the ZHB with jurisdiction to hear a substantive validity challenge to the Township's SWMO; the Township's SWMO does not traverse beyond the scope of its goal of regulating stormwater to intrude into territory demarcated by Section 107 of the MPC as the exclusive province of land use ordinances. Therefore, pursuant to Section 1601(f) of the Code, any challenge to the validity of the SWMO must be made in an original action in the court of common pleas. 53 P.S. § 10107; 53 P.S. § 66601(f).

         II.

         Next, Delchester argues that the Trial Court erred in concluding that the "net out" provision in the Township's ZO is valid.[6] The ZO defines "lot area, net, " as follows:

The area of land contained within the limits of the legally described property lines bounding the lot, exclusive of any existing or proposed street or railroad rights-of-way, common open space, private easements, easements for the purposes of access, utility (above or on the ground) or stormwater management including infiltration areas, prohibitive steep slopes, floodplain, floodway, and wetlands as defined by this Ordinance. Unless otherwise specified, where the term "lot area" is used in this Ordinance, it shall be construed to mean net lot area.

(ZO § 27-202 (emphasis added).) Delchester argues that this provision is constitutionally infirm because it is not substantially related to the legitimate interest it purports to serve. Delchester contends that under the "net out" provision it is required to (a) design stormwater management facilities to serve its proposed development, (b) calculate the area for those facilities, and (c) exclude that area from the buildable lot area for the proposed development and that the effect of these requirements is to then preclude the very development for which the stormwater facilities were designed. Delchester further contends that the confiscatory nature of the "net out" provision is exacerbated by the requirement contained in the Township's SWMO that an above-ground stormwater basin be limited to a depth of two feet. (See SWMO § 20-303.) Delchester's argument that the "net out" provision is invalid implicates its rights under Article I, Sections 1 and 10 of the Pennsylvania Constitution and the Fifth and Fourteenth Amendments to the United States Constitution to substantive due process and to not have its property taken without just compensation. Appeal of White, 134 A. 409 (Pa. 1926).[7] The Township argues that the "net out" provision is a reasonable site specific means to regulate density and to serve the stated purpose of the ZO to preserve the environment, protect natural resources, and prevent flooding. The Township argues that Delchester failed to meet its burden of proof by demonstrating that the "net out" requirement was invalid.

         Delchester's burden of proof is a heavy one. Property owners have a constitutional right to enjoy their property. U.S. Const. amends. V, XIV; Pa. Const. art. I § 1. However, townships may place reasonable limits on the right of private property owners to do what they wish with their property by enacting zoning ordinances in accordance with the township's police powers to protect the public health, safety, and welfare. Section 604 of the MPC, 53 P.S, § 10604; In re Realen Valley Forge Greenes Associates, 838 A.2d 718, 727-729 (Pa. 2003); Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114, 1134 (Pa. Cmwlth. 2014). A zoning ordinance is presumed to be constitutional unless the party challenging the ordinance demonstrates that the ordinance is unreasonable, arbitrary, or not substantially related to a township's power to protect the public health, safety, and welfare. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926); BAC, Inc. v. Board of Supervisors of Millcreek Township, 633 A.2d 144, 146-147 (Pa. 1993); Keinath v. Township of Edgmont, 964 A.2d 458, 462 (Pa. Cmwlth. 2009); Fisher v. Viola, 789 A.2d 782, 785 (Pa. Cmwlth. 2001). In examining whether the ordinance is a valid exercise of the police powers, reviewing courts employ a substantive due process analysis, balancing the public interest to be served by the ordinance against the confiscatory or exclusionary impact of the ordinance on individual property rights; however, where the validity is debatable, it is the legislature's judgment that must control. Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 491 A.2d 86, 90 (Pa. 1985); Penn Street, 84 A.3d at 1134.

         A.

         Initially, we reject a threshold argument made by Delchester regarding the Trial Court's reliance on the ZHB's findings of fact. Delchester argues that the issue of whether the "net out" provision is a valid ordinance is a pure question of law akin to whether a proposed use falls within a given category contained in a zoning ordinance. Whether a zoning ordinance crosses over from a legitimate exercise of the police power to an unreasonable restriction on an owner's private property rights is a question of law but it is not purely a legal question. Rather, because there is simply no precise formula for determining whether zoning ordinances regulating private property are valid across the board, absent a permanent physical invasion or deprivation of all economically beneficial use of the property, an analysis of the validity of a zoning ordinance must proceed on a case-by-case basis according to the specific statutory and factual background presented. National Land & Investment Co. v. Kohn, 215 A.2d 597, 607-608 (Pa. 1965); Penn Street, 84 A.3d at 1135; McGonigle v. Lower Heidelberg Township Zoning Hearing Board, 858 A.2d 663, 669 (Pa. Cmwlth. 2004).

         At the heart of the statutory structure of the MPC-providing procedural mandates to ensure a fair and uniform process for land use planning and development while delegating most substantive regulation of land use to local jurisdictions-is a recognition by the General Assembly that what may be necessary and legitimate in one jurisdiction may be confiscatory and invalid in another. Different communities have different concerns, often due to localized natural features or patterns of density and growth. The localized nature of zoning and land use recognized by the General Assembly in structuring the MPC also informs the role the MPC preserves for the zoning hearing board and its provision for appellate review. Except upon motion by the challenging party or an absence of fact finding below, the trial court does not take additional evidence and the findings of fact made by the zoning hearing board "shall not be disturbed if supported by substantial evidence." Section 1005-A of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11005-A. Where the trial court does not take additional evidence, the trial court reviews the decision of the zoning hearing board with the same standard and scope as this Court does upon further appellate review and is limited to a determination of whether the zoning hearing board committed an abuse of discretion or error of law and, where the findings of fact are supported by substantial evidence, the trial court may not disturb the findings of the zoning hearing board. Boundary Drive Associates, 491 A.2d at 90; Appeal of M.A. Kravitz Co., Inc., 460 A.2d 1075, 1081 (Pa. 1983); Schwartz v. Philadelphia Zoning Board of Adjustment, 126 A.3d 1032, 1035 & n.5 (Pa. Cmwlth. 2015); In re Bartowski Investment Group, Inc., 106 A.3d 230, 238 (Pa. Cmwlth. 2014); 8131 Roosevelt Corp. v. Zoning Board of Adjustment of City of Philadelphia, 794 A.2d 963, 970 (Pa. Cmwlth. 2002).

         The introduction of constitutional issues into a challenge to a zoning ordinance does not alter the zoning hearing board's role as the fact finder or appellate review; an appellate court's analysis of legal issues raised before it that are dependent on the factual circumstances presented, rather than pure questions of law, must not usurp the zoning hearing board's role as finder of fact where substantial evidence in the record supports the board's findings. In re Realen, 838 A.2d at 731-732; Appeal of M.A. Kravitz Co., Inc., 460 A.2d at 1081; Schwartz, 1126 A.3d at 1043-1045; In re Bartowski Investment Group, 106 A.3d 240-244; 8131 Roosevelt, 794 A.2d at 969-970.[8] Where a party has challenged a legal conclusion based in part on factual findings, but does not contend that the relevant facts are unsupported by substantial evidence, an appellate court may not act as the finder of fact under the guise of the plenary review reserved for pure questions of law. In re Realen, 838 A.2d at 731-732; Jones v. Zoning Hearing Board of Town of McCandless, 578 A.2d 1369, 1371-1372 & n.2 (Pa. Cmwlth. 1990).

         In analyzing the issue of whether the "net out" provision was valid, the Trial Court applied the correct standard and scope of review. The Trial Court examined the findings of the ZHB and determined that there was substantial evidence in the record to support the ZHB's findings. (Trial Court Op. at 12-15.) Furthermore, the Trial Court found no grounds to support a conclusion that the ZHB capriciously disregarded evidence in resolving issues of credibility and the weight to be afforded the evidence of record. (Id.) Having determined that the ZHB did not capriciously disregard evidence and that the findings it made were supported by substantial evidence, the Trial Court examined the legal issues before it based upon the facts found by the ZHB. Lamar Advertising of Penn, LLC v. Zoning Hearing Board of Borough Deer Lake, 915 A.2d 705, 709 n.9 (Pa. Cmwlth. 2007) ("Upon reviewing a decision of a zoning hearing board, a court may not substitute its judgment for that of the board; and, assuming the record demonstrates substantial evidence, the court is bound by the board's findings which result from resolutions of credibility and the weighing of evidence rather than a capricious disregard for the evidence."); see also In re Realen, 838 A.2d at 731 (noting "an unbroken line of authorities which have limited the scope of judicial review of the findings of zoning hearing boards to a determination of whether those findings are supported by substantial record evidence."). Accordingly, we find no error in the Trial Court's reliance on the ZHB's findings of fact.

         B.

         Turning to Delchester's argument that the "net out" provision is invalid because it violates Delchester's right to due process of law, we agree with Delchester that the "net out" provision, whether coupled with the SWMO two feet basin requirement or standing alone, is restrictive; however, we are not persuaded that it lacks a substantial relationship to the public ...


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