The Legal Intelligencer
On March 2, the Commonwealth Court rendered a decision in Embreeville Redevelopment v. Board. of Supervisors of West Bradford Township, 134 A.3d 1122 (Pa. Commw. Ct. 2016), which clarified when a zoning ordinance amendment, although solely textual on its face, constitutes a zoning map change and triggers the additional notice requirements under Section 609(b) of the Municipalities Planning Code, 53 P.S. Section 10609(b).
The Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC), which establishes the framework for zoning and land use regulation in Pennsylvania, sets forth the detailed procedure a municipality must follow when adopting or amending a zoning ordinance. In pertinent part, a municipality intending to amend its zoning ordinance, regardless of whether the proposed amendment is a text amendment or a zoning map change, must: transmit a copy of the proposed amendment to the county planning agency (if one has been created) for review and comment; transmit a copy of the proposed amendment to the municipality’s planning commission for review and comment (if the planning commission did not prepare the amendment); hold a public hearing on the proposed amendment; and publish notice of the public hearing on the proposed amendment twice, in two successive weeks, in a newspaper of general circulation in the municipality no more than 30 and no less than seven days before the public hearing, (see MPC Sections 304(a)(3) and 609; 53 P.S. Sections 304(a)(3) and 609). In addition to the foregoing requirements, if a proposed amendment involves a zoning map change, Section 609(b) of the MPC requires that a municipality also conspicuously post notice of the public hearing on the properties affected by the proposed map change; and mail notice of the public hearing to the owners of property affected by the proposed map change. The MPC does not define what constitutes a “zoning map change.”
In Embreeville, Embreeville Redevelopment purchased over 200 acres of land in West Bradford Township, intending to redevelop the property into a medium- and high-density residential use. However, the property, which was historically used as a psychiatric hospital, was located in the township’s IM-Industrial/Mixed Used District. That district did not permit residential uses. In light of the use restrictions in the IM-Industrial/Mixed Used District, Embreeville met with representatives of the township before and after purchasing the property to discuss its redevelopment plans.
After meeting with Embreeville, the township engaged a consultant to determine whether the township’s zoning ordinance was sufficient to meet the township’s fair share housing obligations. The consultant concluded that the township faced a projected deficit of more than 1,000 multifamily housing units. The township, in response to the consultant’s findings, declared its zoning ordinance substantively invalid and passed a resolution invoking the municipal curative amendment procedure pursuant to Section 609.2 of the MPC, which allows the municipality 180 days to cure an invalidity without threat of a land owner validity challenge (53 P.S. Section 10609.2). The township then attempted to cure the zoning ordinance’s failure to provide adequate land for development of multifamily dwellings by adding medium- and high-density residential uses, such as townhomes, semi-detached homes and apartments, as uses in the township’s I-Industrial District.
Because the township’s proposed cure did not add medium- and high-density residential uses to the township’s IM-Industrial/Mixed Used District, Embreeville submitted a memorandum to the township asking it not to adopt the amendment as proposed. Rather, Embreeville requested that the township develop an amendment that would allow multifamily residential uses on Embreeville’s 200-acre parcel in the township’s IM-Industrial/Mixed Used District.
Unpersuaded by Embreeville’s memorandum, the township, in accordance with Sections 609(c) and (e) of the MPC, transmitted the ordinance to the township’s planning commission and the Chester County planning agency for review and comment. The Chester County planning agency reviewed the proposed amendment and commented, among other things, that medium- and high-density residential development would be appropriate in the township’s I-Industrial District.
The township planning commission, over the course of two public meetings, also reviewed the proposed ordinance. During its review, the commission considered the Chester County planning agency’s comments. Various members of the commission also visited the township’s I-Industrial District to gauge whether medium- and high-density residential uses were appropriate and compatible with other uses in the district. Concluding, in accord with the Chester County planning agency, that the township’s I-Industrial District was suitable for the siting of medium- and high-density residential uses, the township planning commission unanimously recommended approval of the proposed amendment.
With a favorable recommendation from the township planning commission, the township published, pursuant to Section 609 of the MPC, notice of public hearing on the proposed amendment twice in a newspaper of general circulation within the township. However, the township did not post the notice on the affected properties (i.e., the properties located in the township’s I-Industrial District) or mail the notice to the affected property owners as required by Section 609(b) of the MPC when a zoning map change is proposed. At a meeting open to the public, the township board of supervisors held a public hearing on the proposed amendment and voted to adopt it.
Embreeville appealed the township’s approval to the trial court, alleging that the amendment constituted a zoning map change and therefore was procedurally invalid because the township failed to comply with the notice, posting and mailing requirements applicable to zoning map changes under Section 609(b) of the MPC. In response, the township argued that the amendment constituted a text amendment and not a zoning map change because the amendment did not: expressly propose a change to the zoning map; increase or decrease the size of any zoning district; or revise any zoning district boundaries. Thus, the township contended that it did not have to comply with the notice, posting and mailing requirements applicable to zoning map changes under Section 609(b). Agreeing with the township, the trial court ruled the township’s amendment did not constitute a zoning map change and thus dismissed the appeal.
On appeal to the Commonwealth Court, Embreeville again alleged that the amendment effectuated a comprehensive change to the township’s I-Industrial District by creating a new residential zoning district and therefore constituted a zoning map change. Accordingly, Embreeville argued that the township was required not only to publish notice of the public hearing, but also to mail and post notice of the public hearing pursuant to Section 609(b).
Agreeing with Embreeville, the Commonwealth Court reversed. In doing so, the court relied upon its earlier decisions in Takacs v. Indian Lake Borough Zoning Hearing Board, 11 A.3d 587 (Pa Commw. Ct. 2010), and Shaw v. Township of Upper St. Clair Zoning Hearing Board, 71 A.3d 1103 (A.3d 1103 (Pa. Commw. Ct. 2013). In Takacs, the court concluded the addition of a single permitted use to a zoning district does not constitute a zoning map change. Whereas in Shaw, the court concluded that the addition of a use permitting mixed-residential development that actually effectuates a comprehensive zoning scheme through the addition of at least 20 additional uses with a multitude of accompanying requirements does. The court further reiterated in Shaw that “if an ordinance contains changes that are so comprehensive in nature as to result in a substantial change to the manner in which the tract of land is zoned in comparison to the surrounding tracts of land that were similarly zoned, then the ordinance will constitute a map change.” Finally, the court observed that a determination of whether a comprehensive zoning scheme exists cannot be based upon the number of changes proposed, but rather upon analysis of the overall effect of the proposed changes.
Similar to the amendment challenged in Shaw, the township’s amendment in Embreeville added a use that permitted medium- and high-density residential development in the township’s I-Industrial District. This use, similar to the use in Shaw, in effect added several residential uses (townhomes, semi-detached homes and apartments) to the township’s I-Industrial District with a multitude of accompanying requirements and conditions. As a result, the court concluded the township’s amendment established a comprehensive zoning scheme that changed the entire nature of the I-Industrial District and, accordingly, constituted a zoning map change that not only required the township to publish notice of the public hearing in a general circulation newspaper, but also required the township to post notice of the public hearing on the affected properties and mail notice of the public hearing to the affected property owners in accordance with Section 609(b) of the MPC.
The Embreeville decision is significant as it provides more defined parameters for municipalities to follow when determining whether an ordinance amendment constitutes a text amendment or a zoning map change and the mandatory procedures for each. It is critical that municipalities ensure that they strictly follow all applicable procedural requirements, as a failure to comply could result in the invalidation of an otherwise substantively valid ordinance.
*Reprinted with permission from the 6/29/16 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
