In this zoning ordinance validity challenge, the Commonwealth Court was asked to weigh in on the difference between a text amendment to a zoning ordinance and a map amendment to a zoning ordinance. In reversing the lower court’s decision that characterized the Ordinance as a text amendment, the court emphasized that the overall effect of the proposed changes was more important to this analysis than the number of proposed changes.
Embreeville Redevelopment, L.P. (“Embreeville”) owned a 223 acre tract of land (the “Property”). The majority of the Property—206 acres—was located in an IM-Industrial/Mixed Use zoning district. Embreeville proposed redeveloping the property for residential use, which was not permitted by right or by conditional use in the IM district. In August 2013 the Township Board of Supervisors (the “Board”) declared the Township’s zoning code to be substantively invalid because it failed to meet its fair share housing obligations by providing inadequate land area for multi-family dwellings. The Board then invoked a municipal cure period pursuant to Section 609.2 of the Municipalities Planning Code (“MPC”). In October 2013 consultants hired by the Township, presented a curative amendment that added medium and high-density residential uses to the I-Industrial district. Embreeville asked the Board not to adopt the Ordinance and instead develop an ordinance amendment to allow the new medium and high-density development to occur on the portion of its property within the Township I-M District. The Board chose to proceed with the consultant’s proposed amendment and enacted it by ordinance (the “Ordinance”). Prior to enactment, the Township Manager followed the notice provisions of the MPC applicable to zoning text amendments rather than zoning map amendments. The primary difference being that affected properties within the affected zoning district were not posted and notices were not sent to affected property owners.
Embreeville appealed the validity of the Ordinance to the Court of Common Pleas of Chester County. It argued the Ordinance was a map amendment, not a text amendment, and the notice provided by the Board was insufficient to satisfy the requirements of MPC Section 609(b). The Board countered that the Ordinance was a text amendment and the notice procedures followed were sufficient. The trial court dismissed Embreeville’s appeal and upheld the validity of the Ordinance. Relying on the Commonwealth Court’s decisions in Takacs v. Indian Lake Borough ZHB, 11 A.3d 587 (Pa.Cmwlth. 2010), and Shaw v. Township of Upper St. Clair ZHB, 71 A.3d 1103 (Pa.Cmwlth. 2013), the trial court found that the Ordinance did not appear to be a comprehensive zoning scheme and thus was a text amendment. It specifically pointed to the fact that the Ordinance was only six pages long; largely related to new area, bulk and design standards; was presently applicable to 5 properties within the Industrial District; and did not change any Township zoning map boundaries. Embreeville appealed.
On appeal, the Commonwealth Court reversed the trial court’s decision. It stated that a determination of whether a comprehensive zoning scheme exists cannot be based upon the number of proposed changes, but rather the overall effect of the changes. The court characterized the Ordinance as adding “an entirely new and arguably incompatible use… to allow the Township to meet its fair share housing obligations.” These changes, the court reasoned, changed the entire nature of the I-Industrial district and were therefore zoning map changes that required additional notice to affected property owners.