United States: Pennsylvania Commonwealth Court Reverses Decision Denying Approval of Stormwater Facility in Environmental Protection Overlay Districts

In the case of Williams Holding Group, LLC v. Board of Supervisors of West Hanover Township, 2014 WL 4627729 (September 17, 2014), Williams Holding Group (WHG) appealed the order of the Dauphin County Court of Common Pleas dismissing its appeal of the denial of WHG's application for conditional use approval by the Board of Supervisors of West Hanover Township.

WHG sought conditional use approval from the board for a stormwater facility in conjunction with its townhouse development project. The project was within an environmental protection overlay district (EPOD), as defined by the township's Zoning Ordinance.

WHG applied for and was issued a permit from the Pennsylvania Department of Environmental Protection (PADEP) and the U.S. Army Corps of Engineers (COE) to build the stormwater facility, which consisted of a stormwater pipe enclosing a length of a waterway within a stream protection overlay district (SPOD) and a hillside and slope protection overlay district (HSPOD), each a type of EPOD. The proposed facility would enclose the waterway and eliminate the SPOD and HSPOD in that area of the property.

The board focused on two provisions within the Zoning Ordinance in coming to its decision. The first provided limitations on removal or alteration of "land with slopes" within an HSPOD, and the second provided, in pertinent part, that any "construction" within an EPOD shall be "minimally invasive."

The board examined the issue of whether the ordinances were negated by the state and federal permits issued to WHG. They concluded that the issuance of permits did not constitute per se approval under the ordinance because the ordinance contained more stringent standards and WHG failed to meet those standards. Specifically, the board found that WHG violated the "land removal" provision and the proposed use was "far from minimally invasive" due to the elimination of the EPOD. The trial court affirmed this decision.

The Commonwealth Court, citing Bray v. Zoning Bd. of Adjustment, 410 A.2d 909 (Pa. Commw. 1980), first analyzed the standards of proof in a conditional use proceeding, noting that if a requirement of an ordinance places the burden on an applicant, but the requirement is nonobjective or too vague for the applicant to comply, the requirement is either nonenforceable or the burden shifts to the objector to show noncompliance. The court thus indicated that a key element in evaluating conditional use decisions is whether ordinance requirements are specific and objective or vague and subjective.

The court found that the conditional use was per se permitted under the ordinance, which allowed as a conditional use "any other use requiring a federal or state encroachment permit," due to the issuance of the DEP and COE permit.

In analyzing the "land removal" provision, the court determined that the term "land" and the removal limitations were ambiguous and vague, and therefore the burden rested with an objector to prove noncompliance. Because no objector participated in the board hearing, the court rejected the board's conclusion that WHG failed to satisfy its burden with regard to this provision.

Similarly, in analyzing the "minimally invasive" requirement, the court found again that the term was vague and subjective and therefore, the burden to prove noncompliance rested on an objector, of which there was none. The court aptly noted, however, that even if "minimally invasive" was considered specific and objective, WHG satisfied its burden through the DEP and COE permit approvals, which required demonstration of "minimal detrimental impact" from the project.

The Honorable James Gardner Colins issued a dissenting opinion, agreeing with the trial court and the board that the plain language interpretation of the "minimally invasive" requirement prohibited conditional use approval where that use would eliminate an EPOD. The dissent argued that the language of the ordinance was not vague but rather clear and provided sufficiently objective criteria. It further noted that an interpretation of an ordinance that produces an absurd result is contrary to the rules of statutory construction and asserted that where a landowner seeking to use land in an EPOD eliminates the EPOD in order to use the land as it sees fit, such interpretation produces an absurd result. The court addressed the dissent, noting that the key goal in regulating the development on hillsides and slopes is a means to an end, such end being the prevention of damage to waterways.

The decision of the Commonwealth Court demonstrates the court's emphasis on the specificity versus ambiguity of the language of a township's zoning ordinance and focuses on the liberal interpretation of such ordinances in favor of conditional use applicants when containing ambiguous language. This decision further provides that, where an ordinance allows as a conditional use "any use requiring a federal or state permit," issuance of said permit constitutes per se approval and shifts the burden of noncompliance to an objector.

NOTE: As of the publication date of this article, no petition for appeal has been filed with the Pennsylvania Supreme Court.

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