Posted by: Patricia Salkin | February 12, 2020

PA Appeals Court Upholds Board’s Application of Ordinance in Finding the Baseline for Determining the Number of Transferable Development Rights Necessary for Development

This post was authored by Matthew Loeser,Esq.

Geerling Florist, Inc. owned a 46.25 acre property, formerly used as a nursery with mulching operation in the RA-Residential Agricultural Zoning District, which it sought to subdivide into forty-nine single-family dwelling units. Under the Warrington Township Zoning Ordinance, Geerling could build only fourteen single-family detached houses by right. In order to increase the number of permitted lots for the subdivision, Geerling intended to convey transferable development rights (“TDRs”) to the Township. In an effort to minimize the number of TDRs it would be required to surrender in addition to the nineteen already conveyed to the Township, Geerling argued that the baseline should be the number of dwelling units it could have had under the Ordinance’s cluster development use provision. The trial court found Section 370-411.G of the relevant Ordinance was ambiguous because it failed to specify how to calculate a baseline for determining the number of TDRs to be conveyed. As a result, the trial court looked to Section 603.1 of the Pennsylvania Municipalities Planning Code (“MPC”), and “interpreted” the Ordinance in favor of Geerling by using the cluster development number of dwelling units as the baseline for determining the number of TDRs necessary for the forty-nine lot development.

On appeal, the Board contended that this was not an “ambiguity”, but an omission, and that this omission should be filled by utilizing the rules of statutory construction and by the Board’s authority to impose reasonable conditions on conditional uses. The Board further claimed that the conditions attached to the Board Cluster Decision (preservation of 83% of the property as open space and preservation of a majority of prime agricultural soils) were reasonable as they were taken directly from Sections 370-403.B and 370-405.2.B(2) of the Ordinance and because it was not the intention of the cluster development provision of the Ordinance “to be used to greatly reduce the proportion of remaining open space by using it as a springboard to create a more intense TDR development.”

The court determined that the language of the Ordinance was not ambiguous with respect to determining a baseline, but was completely silent on the subject. As such, the application of Section 603.1 was inappropriate. Pursuant to the Ordinance as it was during the relevant time period, cluster development functioned to preserve open space and prime agricultural soils for future agricultural use – in addition to the preservation of 83% open space and other requirements specified in Section 370-405.2.B. Thus, applying deference to the Board, as the entity which adjudicates conditional uses, the court held that the Board did not err in its application of the Ordinance. Accordingly, the trial court’s holding to the contrary was reversed.

Geerling Florist, Inc. v. Board of Supervisors of Warrington Township, 2020 WL 697509 (PA App. 2/12/2020)


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