PENNSYLVANIA ZONING LAW AND PRACTICE
The purpose of this Blog is to keep subscribers of Biselís Pennsylvania Zoning Law and Practice set updated on key zoning cases and laws between publications of supplements. The following 2017-2018 Zoning Cases were decided after the 2018 Supplement to Pennsylvania Zoning Law and Practice went to press.
Cases reported by Supplement author: George Asimos of Saul Ewing Arnstein and Lehr LLP
Issue Not Raised at Hearing is Waived. In Red Lion Borough, Appellant v. Red Lion Borough Zoning Hearing Board and ArthurLee, LLC, decided October 20, 2017, the Commonwealth Court declined to overturn approval of a special exception where the appellant (the Board of Supervisors) argued that the applicant had failed to comply with an objective criterion for granting the special exception, which was a requirement for a minimum 80 feet of lot frontage. The record did not indicate whether the applicant's lot had complied with this requirement and the challenge to the decision failed because the issue had not been raised in front of the zoning hearing board.
Special Exception - Failure to Satisfy Condition. In Appeal by Grande Land, L.P. from the Decisions of the North Manheim Township Zoning Hearing Board, decided on November 17, 2017, the Commonwealth Court found that the applicant had failed to conclusively demonstrate that the calculation of minimum required open space (25% of the tract), required for the grant of a special exception for a multi-family residential development project, properly excluded the area of two stormwater retention basins as was required by the ordinance. The testimony by the applicant's expert witness was conclusory on this point: "they were all calculated per the ordinance" and, with respect to the basin area, "we exempted it out". The plans contained the usual zoning compliance table showing the percentage open space requirement was met, but did not display a calculation explicitly subtracting the area of two basins. The Board and the courts found this unconvincing. Apparently no other part of the record gave greater clarity to the testimony. However, no other part of the record contradicted the expert. One might have expected the applicant to prevail on this point given the lack of any contradicting testimony, the deference due a licensed expert (a surveyor), the safety of the inevitable check upon later review by the PC and Board during land development, and the typical brevity of explanations provided in zoning hearings. Both courts, instead, deferred to the Board though it had nothing to rely upon to undermine the expert's credibility except his somewhat-less-than-convincing conclusory statement.