The Legal Intelligencer
The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., authorizes municipalities to engage in land use planning and implement land use controls through a number of mechanisms, including comprehensive plans, official maps, zoning ordinances, subdivision and land development ordinances and planned residential developments. On May 9, the Commonwealth Court rendered a decision in Delchester Developers v. Zoning Hearing Board, 2017 Pa. Commw. Ct. LEXIS 192 (Pa. Commw. Ct. 2017), concluding, among other things, that stormwater management ordinances are not land use ordinances governed by the MPC.
In Delchester Developers, Delchester Developers L.P. submitted a preliminary land development plan application to the township of London Grove seeking approval to develop commercially two lots located within the township’s Groundwater Protection Overlay District. The overlay district encompasses a threatened geological formation in the township that allows water to move quickly through it. In recognition of the threat to and challenges posed by the geological formation, the township board of supervisors adopted stringent stormwater management regulations applicable in the overlay district to ensure recharge, prevent sinkhole formation and protect the groundwater from contamination.
In order to effectuate its plans, Delchester sought several variances and special exceptions from the township’s zoning hearing board, and brought challenges to the substantive validity of various township ordinances, including the township’s stormwater management ordinance (SWMO). The township zoning hearing board denied all of Delchester’s requests. The zoning hearing board rejected Delchester’s substantive validity challenge to the SWMO, concluding that because the SWMO is not a land use ordinance under the MPC, the zoning hearing board lacked jurisdiction over the challenge. The trial court affirmed.
Section 909.1(a)(1) of the MPC confers upon a zoning hearing board exclusive jurisdiction to hear and render final adjudications on “substantive challenges to the validity of any land use ordinance,” 53 P.S. Section 10909.1. On appeal to the Commonwealth Court, Delchester contended that the SWMO was a land use ordinance because it regulated the size, height, and location of stormwater facilities constructed as part of a development, and compliance with the SWMO was a prerequisite to land development approval.
In addition to challenging the zoning hearing board’s rejection of its substantive validity challenge to the SWMO for lack of jurisdiction, Delchester raised the following additional issues before the Commonwealth Court: whether the zoning hearing board and trial court erred in concluding the “net out” provision in the Township’s zoning ordinance, which requires Delchester to exclude the area designated for stormwater management facilities from the building lot area for the proposed development, survives constitutional scrutiny under a takings analysis and is therefore invalid; whether the zoning hearing board and trial court erred in concluding that the word “site” as used in the township’s zoning ordinance is synonymous with the word “lot” as the term is defined in the zoning ordinance; and whether the zoning hearing board and trial court erred in concluding that one of the proposed driveways to the subject property constitutes an “internal access drive” as the term is defined under the zoning ordinance. The Commonwealth Court rejected all of these arguments. The Commonwealth Court’s ruling on Delchester’s taking argument will be analyzed in a future article.
The township, taking the position that the SWMO is not a land use ordinance, countered Delchester’s argument by citing to the definition of “land use ordinance” in the MPC. The MPC defines “land use ordinance” as “any ordinance or map adopted pursuant to the authority granted in Articles IV, V, VI and VII.” See MPC Section 107; 53 P.S. Section 107. Article IV of the MPC provides for the adoption of official maps, Article V authorizes subdivision and land development ordinances, Article VI addresses zoning ordinances and maps, and Article VII authorizes the adoption of ordinance provisions regulating planned residential developments. Since the SWMO was not adopted pursuant to Articles IV, V, VI or VII of the MPC, the township took the position that the SWMO is not governed by the MPC. Instead, the township asserted that it adopted the SWMO pursuant to Section 2704 of Second Class Township Code, 53 P.S. Section 67704, which expressly authorizes the adoption of stormwater management ordinances. Accordingly, any complaint challenging the legality of the SWMO must be filed with the court of common pleas pursuant to Section 1601(f) of the Second Class Township Code, 53 P.S. Section 1601(f), instead of with the zoning hearing board pursuant to the MPC.
The Commonwealth Court, agreeing with the township, affirmed the zoning hearing board’s and trial court’s conclusion that the board lacked jurisdiction over challenges to the substantive validity of the SWMO. The court explained that when tasked with determining whether a local ordinance is a “land use ordinance” subject to the procedural framework mandated by the MPC, courts “must look first at the purpose of the [ordinance] and then examine whether the [ordinance] stays within the limit to which that purpose extends or goes beyond its scope.” The court then analyzed the definition of “land use ordinance” under Section 107 of the MPC and the statutory authority for and stated purpose of the SWMO. In doing so, it emphasized that just because the SWMO and the township’s zoning and subdivision and land development ordinances contain provisions addressing shared concerns (e.g., the movement of water or the impact of development on the natural environment) or utilize the same regulatory techniques to achieve their goals (e.g., the regulation of the size, height, and location of stormwater facilities or the imposition of setbacks and buffer requirements) “does not make all three types of ordinances land use ordinances.”
The Commonwealth Court found that, based upon the express language of the SWMO, its primary purpose was not the regulation of land pursuant to the powers granted by Articles IV-VII of the MPC—the SWMO was not an official map, it did not divide all of the land within the township into zones or regulate specific uses permitted within each zone like a zoning ordinance, it did not provide for the division or re-division of a lot nor did it regulate the location and bulk of structures constructed on those lots like a subdivision and land development ordinance, and it did not provide for the development of a large tract of land in accordance with a plan intended to supersede the underlying zoning like a planned residential development. The court, finding the primary purpose of the SWMO to be the regulation of stormwater, concluded that the use of regulatory tools in the SWMO similar to those used in land use ordinances (e.g., size, height, location, setback and buffer regulations) did not carry the SWMO beyond the scope of its goal and into the purview of the MPC.
The Delchester decision underscores the importance of proper characterization of municipal ordinances for a variety of reasons. As the developer painfully learned there, all ordinances are not land use ordinances, the validity of which can be challenged before zoning hearing boards, as opposed to in the courts. On the other hand, municipalities must take care to appropriately classify the types of ordinances they adopt, as the MPC imposes substantially more procedural requirements in connection with the adoption of land use ordinances (e.g., public hearings, more advanced public notice, distribution and review by planning agencies) than do ordinances adopted under the Second Class Township Code and the other general municipal codes.
*Reprinted with permission from the 7/22/17 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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