Posted by: Patricia Salkin | September 1, 2012

PA Cmwlth Ct. Overturns Conditional Permit Since General Assembly Authorization was Required to Meet Conditions Imposed by Board

Ann Feldman appeals from an order of the Court of Common Pleas of Chester County which affirmed the order of the Board of Supervisors granting the conditional use application to construct multi-family dwelling units. Developers proposed to build 70 multi-family dwellings on a parcel, located in the Township’s R–4 Low Density Cluster Residential zoning district. Prior to the filing of the conditional use application, a proposed amendment to the Township’s Zoning Ordinance was under consideration that would permit a multi-family dwelling use as a conditional use in the  R–4 zoning district.

On June 30, 2010, the Board enacted Ordinance No.2010–01, allowing multi-family dwellings as a conditional use. On July 5, 2010, the Board issued a decision granting Developers’ application for a conditional use and imposed a number of conditions on development. Feldman claims that the Board erred in granting the application since the 1) Developers did not satisfy the requirements of the Township’s Zoning Ordinance; 2) the open space and storm water management requirements were met through an easement on adjacent Borough parkland which requires court approval under the DDPA and the Public Trust Doctrine; and 3) the procedure was defective and violated section 917 of the Municipalities Planning Code.

Feldman primarily claims that the developers did not satisfy the requirements of the Zoning Ordinance since they did not meet the open space requirements and storm-water management requirements. The court points out that a conditional use is one to which the applicant is entitled provided that the specific standards of the zoning ordinance are met. However, a governing body may impose reasonable conditions on the grant of a conditional use. Furthermore, the proper function of conditions is to reduce the adverse impact of a use allowed under a special exception. Here, in order to meet the open space and storm-water management requirements, the seller conveyed an easement in a parcel to the developers. The record does not show that the General Assembly granted the Borough the authority to convey an encumbrance to Developers to use the parcel to meet the open space and storm-water management requirements. Thus, the uses to which the parcel is subject under the Agreement and its amendments are without effect in the absence of prior approval by the General Assembly. The liberalizing of uses of these land areas for purposes other than those authorized would naturally tend to thwart, defeat, and destroy the results expressly desired by the General Assembly. As a result, the Board erred in granting the conditional use application and the trial court order is reversed.

Feldman v Board of Supervisors of East Caln Township. 2012 WL 2849499 (Pa. Cmwlth 7/12/2012)

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