Posted by: Patricia Salkin | January 6, 2018

PA Appeals Court Upholds Denial of Special Permit Finding Landowner Failed to Demonstrate that Development Would Satisfy Zoning Requirement Regarding Open Space

This post was written by Matthew Loeser, Esq.
Grande Land, L.P. filed an application with the North Manheim Township Zoning Hearing Board (ZHB), seeking a special exception to construct an apartment complex containing seventy-two multi-family apartment units on its property. In support, Grande Land presented the testimony of Stephen Bensinger, a professional land surveyor, who stated that public water and sewer were available for the subject property and there was an existing sanitary sewer pump station located on the property. Bensinger also testified that after development, 25.5 percent of the property would remain open space and would not include front, side, or rear yards. He further testified that thirty-five percent of the total area developed would be set aside for noncommercial open space and that the proposed development of the property complied with all of the requirements and exclusions relative to common open space areas. The ZHB finds that Grande Land failed to satisfy the requirements of Ordinance 504.4(j). Specifically, the common open space areas in the 12.9-acre portion of the parcel included detention basins and a sizable wetlands area. The trial court therefore affirmed the decision of the North Manheim Township Zoning Hearing Board, denying Grande Land’s application for a special exception.

On appeal, Grande Land argued that the ZHB and the trial court abused their discretion in concluding that Grande Land failed to meet the sewage disposal system requirement set forth in Section 504.2 of the Ordinance. The court found, however, that the minimum requirement established by Section 504.2 of the Ordinance only required Grande Land to represent that it would employ a sewage disposal system that was regularly approved by DEP. Thus, Grande Land was not required to prove the feasibility of its proposed sewage disposal system to the ZHB, but could address those details at a later point in time through the approval process with DEP. Here, Grande Land’s Application had an attached copy of the Planning Module indicating that the Property would be served by public sewer, which was a method that had been approved by DEP, and included Bensinger’s testimony that the public sewer available for the property was sufficient for purposes of ZHB approval. Accordingly, the court held that the ZHB and the trial court erred in concluding that Grande Land failed to meet the sewage disposal requirements set forth in Section 504.2 of the Ordinance.

Grande Land next argued that the ZHB and the trial court abused their discretion by finding that Grande Land failed to meet the requirement set forth in Section 504.4(a) of the Ordinance regarding the maximum length for a multi-family building. Here, Grande Land’s Application contained Exhibit A–3 (the Site Plan) and A–9 (the Lighting Plan), which established that its proposed multi-family buildings would not exceed 128 feet in length. As such, the court held that the ZHB and the trial court committed errors of law and abused their discretion by concluding that Grande Land failed to meet the requirement set forth in Section 504.4(a) of the Ordinance regarding the maximum length for a multi-family building.

Lastly, Grande Land contended that it presented evidence and testimony that it met the open space requirement using only the property, so the ZHB had no basis to deny its Application based upon findings related to the Adjacent Parcels. Here, however, the record reflected that when questioned by the ZHB about the open space calculations, Bensinger could not recall the specific requirements of the Ordinance or whether the detention basins were included as open space in the calculations. Since the ZHB and the trial court did not abuse their discretion or commit errors of law by concluding that Grande Land failed to meet the open space requirement set forth in Section 504.4(j) of the Ordinance, the trial court did not err in affirming the ZHB’s denial of Grande Land’s Application.
Appeal by Grand Land, L.P., 174 A. 3d 1178 (PA Commwlth 1/5/2018)

 


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