Case SummaryMay 2010 – Newsletters In the Zone
In HHI Trucking & Supply, Inc. v. Borough Council of the Borough of Oakmont, the Commonwealth Court affirmed the decision of the trial court setting aside 14 of 33 conditions imposed by a borough council in connection with the grant of conditional use approval. In so affirming, the court provided several examples of what constitutes an unreasonable condition in connection with the grant of a conditional use.
In HHI Trucking & Supply, Inc. v. Borough Council of the Borough of Oakmont, the applicant sought approval of a ready-mix concrete plant on a 3.2-acre plot in the industrial district where concrete plants were permitted by conditional use. The borough granted the application subject to 33 conditions, which, among other things:
- Limited the hours of operation;
- Limited the hours of deliveries;
- Limited the delivery of cement to one time a week;
- Limited truck idling on the property;
- Required annual air quality studies;
- Required the applicant to widen the entire road;
- Imposed mandatory wet down of materials on "dry days;" and
- Required the applicant to reimburse the borough for traffic engineer review fees and inspection costs.
The applicant appealed the conditions, arguing that they were unreasonable and effectively prohibited the applicant from building and operating its proposed plant. The trial court affirmed the approval of the application but voided 14 of the conditions, concluding that these conditions lacked any support in the record.
The Commonwealth Court affirmed the decision of the trial court. The court found that a municipality may attach conditions to conditional use approval, but that pursuant to Section 913.2(a) of the Pennsylvania Municipalities Planning Code (MPC), those conditions must be reasonable:
In granting a conditional use, the governing body may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act in the zoning ordinance.
53 P.S. § 10913.2(a) (emphasis added). Reasonable conditions are those that advance a valid zoning interest and are supported by evidence of record. A municipality abuses its discretion when it imposes a condition without supporting evidence in the record. Further, a reasonable condition is one that relates to a standard adopted in the applicable zoning ordinance.
Here, the court found that 14 of the conditions imposed by the borough were unreasonable because they lacked any evidence in the record or standard in the zoning ordinance justifying their need. In effect, the conditions appeared to have been "drawn from thin air," which is arbitrary and capricious. The court found that the borough had erred in limiting the operating hours of the plant, restricting the number of deliveries and requiring that the plant "wet down" materials on dry days because the record was devoid of any evidence to show that without such measures the proposed use would cause harm that violated the zoning ordinance. Moreover, the court found that the hours imposed by the borough would make the property owner uncompetitive in the industry and that the restrictions limiting truck operations had not been imposed on any other trucks, making it discriminatory.
The court also addressed the improper conditioning of review fees and off-site road improvements. The court found that with respect to hearings before the zoning hearing board, Section 617.3(e) of the MPC specifically prohibits a municipality from passing on "expenses for engineering, architectural or other technical consultants or expert witness costs." 53 P.S. § 10617.3(e).
The court rejected the borough's attempt to recover engineering fees by invoking Section 503 of the MPC, 53 P.S. § 10503, which authorizes the recovery of professional consulting fees incurred in the planning and subdivision proceeding. The court found that Section 503 was not applicable because the borough's SALDO did not authorize recovery of engineering fees and, more importantly, the fees here resulted from a zoning hearing and were therefore governed by Section 617.3(e) of the MPC.
In addition, pursuant to Section 603 of the MPC, a municipality is prohibited from conditioning approval on off-site road improvements. 53 P.S. § 10603. Here, the borough attempted to condition approval on improvements to the entire road.
In sum, the court held that 14 of the conditions imposed by the borough were unreasonable in that they lacked evidence of record explaining their need. Without such evidence, it was impossible to determine whether the municipality had acted reasonably in its imposition of the conditions. Additionally, some of the conditions were found to be inconsistent with the MPC or lacking any basis in the zoning ordinance. Accordingly, the court found that the borough abused its discretion in imposing the 14 conditions and affirmed the trial court's decision.
For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].