Commonwealth Court Holds That Zoning Provision Permitting “One- or Two-Family Dwellings” Without Specifying How Many Dwellings Were Permitted on Each Lot was Ambiguous, and was To Be Construed in Favor of Landowner

April 2015Articles In the Zone

In Riverfront Development Group, LLC v. City of Harrisburg Zoning Hearing Bd., --- A.3d ---, 2015 WL 400542 (Pa. Commw. 2015), the Commonwealth Court held that the Harrisburg Zoning Hearing Board abused its discretion in denying a developer’s application by creating a lot limitation not expressly contained in the zoning code.

In the case, a developer submitted an application to construct two, two-unit rental apartment buildings on one lot. The developer also sought a special exception and variances to waive portions of the setback and accessory parking requirements. The developer contended that the applicable provision did not stop him from building two buildings on one lot:

(a) In an RLA Zoning, only the following buildings, structures and uses shall be permitted:

(1) one- or two-family detached dwellings having a floor area of 400 square feet or more for each family. Two-family dwellings require separate outdoor or vestibule entrance on the ground floor, front and rear, for each family;

(2) one- or two-family semi-detached and attached dwellings having a floor area of 400 square feet or more for each family. Two-family dwellings require separate outdoor or vestibule entrance, front and rear, for each family; provided, however, that in cases of conversion or remodeling of existing buildings, the separate entrances may be from a common hall or stair hall[.]

The board disagreed with the developer’s interpretation of the zoning code that “the restriction to ‘one- or two-family dwellings means that [developer] can erect as many one- or two-family dwellings on a lot as he wants to.” The board held that the developer’s interpretation of the zoning code would “eliminate the idea of single-family-per-lot-neighborhoods, or two-family-per-lot-neighborhoods by allowing a developer to increase the number of structures on the lot, regardless of the zoning limitations” and stated that this interpretation “flies in the face of the clear words, as well as the intent, of the code.” Thus, the board denied the application on the ground that the developer failed to prove entitlement to a variance to erect four dwelling units and concluded that the other parking, dimensional and design issues need not be reached.

The developer appealed to the trial court. The trial court affirmed the board’s decision finding that the board’s interpretation of its own zoning code was entitled to great weight and deference and that the board’s interpretation of the number of lots was reasonable. The trial court further concluded that the developer’s interpretation of the zoning code, that as many one- or two-family dwellings as feasible can be built on a lot, was contrary to the zoning code’s wording and general intent.

The developer appealed to the Commonwealth Court. The specific question presented on appeal was whether it was clear from the above provision that there was a limitation on the number of units permitted per lot. The Commonwealth Court concluded it was not clear.

In reviewing the provision, the court found there was no specific language in the provision that restricted the number of one- or two-family dwellings permitted on a given lot. Rather, the zoning provision permits the construction of “one- or two-family detached dwellings having a floor area of 400 square feet or more for each family” so long as the buildings are in conformance with the remainder of the zoning code.

The court emphasized that a zoning hearing board must enforce the literal terms of a zoning code as written without imposing its own concept of how an ordinance should have been drafted. The court further noted that the board had an obligation to construe the words of an ordinance as broadly as possible to give the landowner the benefit of the least restrictive use when interpreting its own zoning code. The court found that it is an abuse of discretion for the board to narrow the terms of an ordinance so as to further restrict the use of property.

The court observed that the zoning provision permits “one- or two-family detached dwellings” without specifying how many detached dwellings are permitted on each lot. The court noted that in drafting the provision, the city council could have simply omitted the word “or” to signify that only one two-family detached dwelling was permitted per lot. Indeed, if the city council had intended to place a restriction on the number of detached dwellings allowed per lot, the “or” in between “one” and “two-family” would be unnecessary.

The court found that the board should have resolved the ambiguity in favor of the applicant, permitting multiple dwellings per lot instead of superimposing its own desired interpretation. The court noted there are safeguards in the zoning code, such as setback and square-footage requirements, that address any overcrowding concerns. The court found that if the city council desired a restriction on the number of dwellings per lot beyond that provided by the dimensional requirements, it simply could have signified that only one dwelling could be built per lot.

As a related issue, the court rejected the developer’s contention that his application for a special exception to the zoning code’s setback requirements should be deemed approved because the board failed to issue a determination regarding that issue within 45 days as required by section 908(9) of the Municipalities Planning Code, 53 P.S. § 10908(9) (“The board … shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the board.”). The court found that the board issued a determination within 10 days from the hearing, denying the developer’s application on the basis that no more than on one unit is permitted per lot. There was no need for the board to reach a decision on the special exception issue when it already determined (albeit, erroneously) that it would deny the developer’s application on the basis of the lot restriction.

Therefore, the court reversed the trial court’s order denying the developer’s application on the basis that no more than one dwelling is permitted per lot and remanded the matter to the trial court with directions to remand to the board for findings regarding the developer’s application for a variance and a special exception for setback, parking and design issues.

View the entire issue of In the Zone (pdf)