A Recent Commonwealth Court Decision Offers Important Guidance on Zoning and Land Use Issues
A recent zoning and land use decision from Pennsylvania’s Commonwealth Court may have practical implications for property owners, developers, and municipalities throughout southeastern Pennsylvania.
In Water’s Edge at Wind Gap, LLC v. Zoning Hearing Board of Moore Township, the Court addressed several issues that frequently arise in the land development process, including the regulation of steep slopes, the limits on required offsite improvements, and what may constitute hardship in support of a zoning variance.
Steep Slope Regulations and Man-Made Conditions
Most municipalities in southeastern Pennsylvania regulate the disturbance of steep slopes, either in their zoning ordinances or in stand-alone ordinances. Until recently, it remained something of an open question whether these regulations applied only to naturally occurring steep slopes, or whether they also extended to man-made steep slopes.
The Court’s decision in Water’s Edge is the most recent to hold that these regulations do extend to man-made steep slopes unless the ordinance explicitly states otherwise.
That distinction can have a meaningful impact on site planning and development potential, particularly where grading or prior site disturbance has altered existing topography.
Limits on Required Offsite Improvements
As many property owners and developers know, the Pennsylvania Municipalities Planning Code (“MPC”) prohibits municipalities from requiring a property owner to construct offsite improvements as a condition of plan approval.
In Water’s Edge, the property at issue abutted Jones Road, but took access exclusively from another road. The township nevertheless imposed a condition requiring the property owner to improve Jones Road, citing the size of the proposed development and its general impact on traffic.
The Court invalidated that condition, holding that the required improvements to Jones Road were “offsite,” as that term is defined in the MPC.
The MPC defines “offsite improvements” as “capital improvements which are not onsite improvements.” For an improvement to be “onsite,” it must be necessary for the ingress or egress to the applicant’s property.
This is a relatively uncommon decision addressing the scope of improvements a municipality may actually require during the development process. It also serves as an important reminder that an improvement should not automatically be assumed to be “onsite” simply because it physically touches the property.
Conflicting Ordinance Requirements as a Basis for Hardship
When seeking a zoning variance, a property owner must establish that strict compliance with the zoning ordinance creates an unnecessary hardship. That standard is often difficult to satisfy.
In Water’s Edge, the property owner was faced with two conflicting ordinance requirements: it was required to preserve a certain percentage of woodland while also providing a 100-foot berm along the entire front property line. Constructing the berm would have made it impossible to preserve the required amount of woodland.
The Court held that being subject to two incompatible ordinance provisions can create the type of hardship necessary to support variance relief.
That portion of the decision is particularly notable because it recognizes that hardship may arise not only from the physical characteristics of a property, but also from the practical impossibility of complying with conflicting municipal requirements.
Takeaway
Water’s Edge is a useful reminder that zoning and land development issues are often more nuanced than they first appear. Questions involving steep slope protection, required public improvements, and variance standards can significantly affect a project’s design, cost, and path to approval.
If you have questions regarding a zoning or land development matter, our team has the experience and depth of knowledge to help guide your project through the approval process.