In the first of two cases relating to the subject property, the Commonwealth Court affirmed the decision of the Court of Common Pleas of Chester County affirming the London Grove Township Zoning Hearing Board’s (“ZHB”) denial of a variance to Delchester Developers (“Delchester”) to develop two adjoining properties.  The Court concluded that the ZHB had properly interpreted its zoning ordinance, that Delchester’s validity challenge of the Borough’s stormwater ordinance was not within the ZHB’s jurisdiction, and the Township’s “net out” provision was neither a violation of due process nor an illegal taking.

Delchester sought zoning relief to develop two adjoining lots located within the Township’s Groundwater Protection District (“GP District”) where special stormwater management measures were imposed. Each property was also located in a different underlying zoning district: one the CI Commercial-Interchange District (the “CI Lot”) and the other the I Industrial District (the “I Lot”). Delchester submitted a preliminary plan (the “Plan”) to develop the CI Lot with a drive-thru bank and restaurant. The Plan called for adding a vehicle access point and drive on the I Lot to allow access to a parking area on the CI Lot, but proposed no further development of the I Lot. Delchester sought several variances and special exceptions, and brought validity challenges to several provisions of the Township’s ordinances. The ZHB denied Delchester’s requested relief, and the trial court affirmed. On appeal to the Commonwealth Court, Delchester argued the trial court erred in finding the ZHB lacked jurisdiction to decide a substantive validity challenge of the Township’s Stormwater Management Ordinance, that the “net out” provision of the Zoning Ordinance was valid, that the terms “site” and “lot” were used synonymously within the zoning ordinance, and that the proposed driveway across the I Lot was an “internal access drive.”

The Commonwealth Court affirmed the trial court’s decision in its entirety. First, the Court held that a ZHB lacks jurisdiction to decide a substantive validity challenge of a stormwater ordinance because a stormwater ordinance is not a land use ordinance.  Rather, the appropriate venue for such a challenge is an original action in the court of common pleas. Next, the Court concluded that a “net out” provision, whereby “net lot area” excluded existing or proposed rights-of-way, common open space, private easements, access, utility or stormwater management easements, prohibitive steep slopes, floodplain, floodway, and wetlands was not a due process violation or an illegal taking. It found that the “net out” provision was substantially related to the public health, safety, and welfare because it aimed to mitigate the destruction of sensitive natural features, the overcrowding of land, and harm from stormwater. Furthermore, no taking had occurred because the exclusion of the Township’s access easement from the net lot area calculations had an essential nexus with Delchester’s proposed development in that it aimed to mitigate stormwater runoff, and was proportional to the anticipated runoff that would be caused by the development.  Lastly, the Court held that the ZHB had appropriately interpreted the disputed zoning ordinance terms.

Click here to read: Delchester Developers, L.P. v. ZHB of the Twp. of London Grove, 86 & 87 C.D. 2016 (Pa. Commw. Ct. May 9, 2017).

Edited by:

Sivertsen_BLOG Zac Sivertsen