PA Appeals Court Finds that Township Improperly Conducted Board Vote, Failed to Adhere to Zoning Ordinance

This post was authored by Patrick Faivre, Touro University Jacob D. Fuchsberg Law Center

In May of 2020, Duke Realty Limited Partnership, a real estate developer (the “Developer”) sought to develop a 1.6 million square foot lot in southeastern Pennsylvania, to which residents (the “Appellants”) opposed.  Under the preliminary development plan (the “Plan”), the lot was to become a warehouse/distribution facility that would be in operation 24 hours a day, 7 days a week.  The site would command a great number of employees (approximately 1,600) and nearly 7,000 car and tractor-trailer trips per day.  Due to the nature of this proposal, an environmental impact study was conducted, and it determined that the Plan would have a critical impact on the pre-existing sewage structure. Therefore, the developer agreed to fund an expansion of the current sewage system as a condition to any approval.  This was the only condition placed upon the developer by the Maxatawny Township the (“Town”) engineer prior to the Town Board of Supervisors’ (the “Board”) vote to approve the Plan.

In opposition to the Board’s approval of the Plan, the Appellants raised three issues.  First, the Appellants argue that certain Board members improperly voted on this measure due to existing conflicts of interests and an improper reading of the Town Ethics Act. Second, the Appellants argue that the Plan is in violation of the Town zoning ordinance and therefore would necessitate a variance to be properly approved. Lastly, the Appellants allege that the Board blatantly ignored evidence regarding the health, safety, and public welfare of the Town’s citizens, in determining whether to approve this Plan. The Court reviewed the first two claims and found that the Board improperly conducted itself with respect to its handling of the Board members’ conflicts of interest, and that the Board’s failure to require the Developer to obtain variances and special exceptions for the proposal, prior to the Plan’s approval, was improper. As for the last claim, the court elected to not pursue an analysis because it remanded the matter back to the Board for further consideration.

With respect to the first issue raised by the Appellants regarding the clear conflicts of interest between the Developer and two members of the Board, the record demonstrated that Board members, Heath Wessner and Alley Leiby, acknowledged that conflicts of interest arose in this matter that would normally have led to their recusal from the Board vote. However, since the Board would not have had a quorum to act on the Plan proposal without both members’ participation, the Board determined, after consulting with the Pennsylvania State Ethics Commission, that member Wessner would abstain from voting, and member Leiby would still take part in the process. In making its determination, the Board relied on the common law doctrine of the Rule of Necessity, derived from the Public Official and Employee Ethics Act, § 1103(j).  The Appellants argued that the Board improperly relied upon the Ethics Act to conduct their vote and that the Rule of Necessity was not intended to apply to matters of zoning and land use law.  Furthermore, the Board should have denied the application due to conflicts of interest. The Court held that the Board did, in fact, improperly hold a vote on the application, but not for the reasons raised by the Appellants.  Instead, the Court concluded that the Law of Necessity allowed both members Wessner and Leiby to vote, as long as they disclosed their conflict of interest to the Board.

The second issue raised by Appellants relates to the interpretation of a zoning ordinance requiring a variance to be granted for a warehouse to be built within 500 feet of a residential building. The Board interpreted the ordinance as requiring 500 feet between the warehouse and the residential building, while Appellants argued that the 500-foot measurement be between properties.  In this case, a residential dwelling was within 500 feet of the proposed warehouse.  In its ruling, the Court found that the ordinance unambiguously made it clear that the appropriate measurement is between property lines, and not structures. Additionally, the Appellants argued that a special variance was needed, prior to approval, because the warehouse would serve as a distribution facility. As such, preliminary approvals cannot be granted on projects that are deficient for reasons of variances and/or special exceptions. The Court found that the Board improperly granted preliminary Plan approval absent the required variances and special exception permit and remanded the matter back to the Board for further proceedings. Since the Court determined to remand the matter back to the Board for further proceedings, there was no analysis or discussion on the health, safety, or public welfare concerns raised by the Appellants. 

Grim v. Maxatawny Township Board of Supervisors, 207 A.3d 1 (PA Commwlth 2023)