PA AppealsCourt Holds Board Erred by Approving the Preliminary Development Plan Without Requiring Applicant to First Obtain a Special Exception

This post was authored by Matthew Loescher, Esq.

In May 2020, Duke Realty Limited Partnership proposed a development plan within the Township for warehouse/distribution facilities with a combined area of 1.6 million square feet on lots zoned for light industrial (LI) use. The plan would also cause the Township’s sewage facilities to reach capacity within five years, requiring an expansion that Duke promised to construct and dedicate to the Township. The Township engineer ultimately recommended approval of the plan conditioned on that expansion as well as ongoing monitoring and compliance with all issues prior to final approval. The Board’s members during the relevant time period were Heath Wessner, Allen Leiby, and Judy Daub. Wessner owned two parcels subject to purchase agreements with Duke as part of the site for the plan. Leiby’s son-inlaw, Jeremy Reinhard, and sister, Grace Haas, also owned parcels subject to purchase agreements with Duke, although Haas’s parcel was not directly part of the site. The Board voted 2-0 to preliminarily approve the plan, with Leiby and Daub voting in favor and Wessner abstaining. Objectors appealed to the trial court and Duke intervened. The trial court upheld the Board’s approval, finding that the Board’s approval of the plan was supported by substantial evidence.

The court first found that although Leiby acted properly by voting on the plan’s preliminary approval, it could find no legal basis for precluding Wessner from voting likewise. As described above, both Leiby and Wessner had conflicts of interest. Abstention by both of them would have left the Board without a quorum. Therefore, both were equally required to vote under Section 1103(j) of the Ethics Act. As nothing in the record existed justifying one of two conflicted Supervisors in voting but not the other, all three Supervisors should have voted.

Duke, the Board, and the trial court found Section 593(c) ambiguous and deferred to the Township’s Zoning Officer, whose determination they read as concluding that there must be at least 500 feet between warehouse buildings and residential dwellings on lots adjacent to the warehouse lot. Section 593(c) expressly states that the distance is to be between properties, not between buildings. The court found the Zoning Ordinance’s use of the word “containing” further supported that meaning, as properties contain buildings, but buildings do not contain properties. The court also found that the Zoning Officer, who advised that the residential dwelling on Haas’s property had to be demolished in order for the Plan to be in compliance with the Zoning Ordinance, did not specifically indicate that the violation arose from a distance of less than 500 feet between the warehouse buildings and the residential dwelling rather than from property to property. Accordingly, the court held that Section 593(c) was not ambiguous in meaning that the issue is distance between properties rather than buildings on those properties.

As a final issue, the court noted that pursuant to Section 107 of the Zoning Ordinance, “if a discrepancy exists between any regulations contained within this Zoning Ordinance, that regulation which imposes the stricter limitation on the proposed use or structure shall apply.” Thus, any proposed warehousing in the LI district required a special exception from the Zoning Hearing Board. The court therefore found that the Zoning Officer erred and the Board violated the Zoning Ordinance by failing to require Duke to secure a special exception before granting preliminary approval, and the Board erred by approving the preliminary plan without requiring Duke to first obtain a special exception. For the aforementioned reasons, the court vacated the trial court’s order and remanded this matter to the Board for further proceedings.

Grim v Maxatawney Township Board of Supervisors, 2023 WL 2799447 (PA Cmwlth 4/6/2023)