Commonwealth Court of PA Addresses Validity ChallengesFebruary 2014 – Articles In the Zone
In November 2013, the Commonwealth Court of Pennsylvania issued a decision in Steven and Deb Boyer v. Board of Supervisors, Franklin Township, et al., a case that addressed the denial of a land use challenge and curative amendment. The Court’s decision once again demonstrates the difficulties in challenging the denial of the land use appeal.
Steven and Deb Boyer (the Boyers) and Ted and Linda Grove (the Groves) were each land owners in Franklin Township. In 2011, the Boyers filed an application pursuant to the Pennsylvania Municipalities Planning Code (the MPC) substantively challenging the validity of the Steep Slope Conservation Overlay (SSCO) of the Franklin Township zoning ordinance. The SSCO applied to all areas of the township that contained areas of 15 percent or greater slope, including plateaus surrounded by the slopes. In their application to the Board of Supervisors of Franklin Township challenging the validity of the SSCO, the Boyers alleged that the SSCO failed to bear a reasonable relationship to the police powers of the municipality, were not reasonable and lacked a rational basis, and constituted a taking without justification or compensation. The Boyers proposed a curative amendment providing that the SSCO provisions should apply to lands within the township that contained areas of 25 percent or greater slopes excluding the plateaus surrounding by the slopes. The Groves participated in the proceeding as an aggrieved party.
The Board rejected the substantive validity challenge and curative amendment. The Board found that the areas covered by the SSCO are subject to landslides, that the regulations were supported by the York County Comprehensive Plan and the Northern York County Regional Comprehensive Plan, that the soils in the SSCO are highly erosive, that best practices for erosion control do not work on slopes greater than 15 percent in the township, and that there are serious concerns for the life, property and safety of residents due to the inability of emergency vehicles to navigate the steep slopes. Based on those and other fact findings, the Board reasoned that the SSCO was rational, not arbitrary and not unreasonable. The Boyers appealed to the trial court, and the Groves and Ronald and Kathleen Gingrich intervened as land owners within the SSCO. The Groves filed a motion for an evidentiary hearing, making a variety of allegations that the evidentiary record at the Board hearing was incomplete. The trial court denied the land use appeal on the basis of res judicata – the court found that the Boyers had previously lost an action contesting a Zoning Hearing Board refusal to grant them a validity variance involving the same property in the SSCO. The court determined that the prior variance action involved the same landowners, the Township’s Zoning Hearing Board and the same two intervenors as well as the Township. The court basically determined that the actions were the same, although in slightly different form, and that the prior refusal was thus binding upon the Boyers in the current substantive validity challenge.
The Boyers and the Groves appealed to the Commonwealth Court and the two appeals were consolidated. After each of the appellants filed statements of matters complained of on appeal, the trial court issued opinions on the two underlying matters. First, the trial court added further support for its decision to deny the request for an evidentiary hearing. In the second opinion relating to the denial of the land use appeal, the trial court relied not only on the doctrine of res judicata, but also reached a decision on the substantive merits of the appeal. The court determined that the Boyers did not demonstrate that the SSCO was “unreasonable and bore no rational relationship to any legitimate zoning interest.”
On appeal, the Boyers and Groves raised four issues:
- That the trial court abused its discretion in denying the evidentiary hearing;
- That the court erred in relying on res judicata;
- That substantial evidence did not support the Board’s various findings of fact; and
- That the court erred in denying the land use appeal when it concluded that the SSCO comported with the police powers of the Township as set forth in the MPC.
In addressing the first issue, the Commonwealth Court determined that the Groves did not demonstrate the need for an evidentiary hearing. The Groves offered testimony and cross examined opposing witnesses. Because the Groves fully participated in the hearing, the Commonwealth Court determined that the record was fully developed and the trial court acted within its discretion in denying the evidentiary hearing.
Next, the Commonwealth Court determined that the Groves and Boyers were correct in asserting that the trial court was mistaken in applying the doctrine of res judicata. The Commonwealth Court noted that a validity variance is different from a substantive validity challenge, because the proof elements are different in the two challenges. Accordingly, the claims were distinct and the trial court was incorrect in relying upon res judicata as a basis for denying the substantive validity challenge.
Third, the Commonwealth Court noted that the appellants seemed to be alleging that various findings of fact made by the Board were not supported by substantial evidence. The appellants did not appear to attack any particular finding of fact, but made a general allegation that “the ordinance was not enacted to advance public health, safety and welfare.” Additionally, the Court noted that “substantial evidence means such relevant evidence as a reasonable person might consider sufficient to support a conclusion.” The Court went on to analyze the various findings of fact made by the Board and determined that, among other things, the Township provided testimony from Township engineers and the Township’s emergency management coordinator that demonstrated that building in the area of slopes of 15 percent or greater resulted in erosion and sediment issues that could not be controlled by best practices for erosion and sediment control and storm water management, and that building in such areas posed life and property safety issues. The Commonwealth Court thus determined that the record demonstrated there was substantial evidence to support the findings made by the Board.
Finally, the Commonwealth Court noted that zoning ordinances, “enjoy a presumption of constitutionality and validity” and that “a challenger must show that the ordinance totally excludes an otherwise legitimate use or is unduly restrictive” in order to support a substantive validity challenge. A challenger can meet this burden by showing that the ordinance is de jure exclusionary (meaning the ordinance bars a legitimate use on its face) or is de facto exclusionary (meaning the ordinance permits a use on its face, but through its application has the effect of barring the use throughout the municipality). The Court determined that the appellants failed to meet their burden. First, the Court noted that prohibiting single-family homes within the SSCO, does not mean that the ordinance is exclusionary, because such homes can be constructed in other zoning districts within the Township. As a result, the only remaining issue is whether the “ordinance is unduly restrictive without a substantial relationship to public health, safety and welfare.” The Court determined that while the ordinance is restrictive, the ordinance does serve the Township’s police powers. The evidence developed at the hearing demonstrated that the ordinance was adopted to protect the public health, safety and welfare. As a result, there was no error in denying the land use appeal.
The Boyer case demonstrates the difficulties in challenging zoning ordinances in Pennsylvania. Generally, the determinations of municipalities will not be disturbed where an evidentiary record is properly developed and demonstrates that the ordinance is rational and serves the interests or the municipality in protecting the public health, safety and welfare.