Fox’s Bucks County Office Scores Major Victory in Challenge to Agricultural Soils Overlay Restriction in Tinicum Township, PA

April 2011Newsletters In the Zone

The Bucks County office of Fox Rothschild achieved a major victory in a published decision by the Pennsylvania Commonwealth Court, striking down an overly broad agricultural soils overlay restriction in Tinicum Township, Pennsylvania. In the case of Main Street Development Group, Inc. v. Tinicum Township Board of Supervisors et al., — A.3d —, 2011 WL 944375, the Commonwealth Court affirmed the decision of the trial court, invalidating an agricultural soils overlay restriction that limited development of prime farmland and prime agricultural soils throughout the entire township to 25 percent—no matter the size, location or zoning of the property.

The court began its review by noting that zoning ordinances must be consistent with the goals of the comprehensive plan concerning future development. If not, the municipality must amend its zoning ordinance. The court found that even though the Pennsylvania Municipalities Planning Code (MPC) mandates that zoning ordinances protect agriculture and prime agricultural lands, it also requires that zoning ordinances facilitate reasonable development. Thus, the court concluded the MPC requires a balancing between agriculture and development.

The court noted although overlay districts are not defined or mentioned in the MPC, they have become common land use tools in Pennsylvania. The court stated “[t]he purpose of an overlay district is to create specific and targeted provisions that conserve natural resources or realize development objectives without unduly disturbing the expectations created by the existing zoning ordinance.” (emphasis in original). In other words, overlay districts must supplement existing zoning districts; they cannot supersede them either in fact or practice.

The court found the township’s zoning ordinance fails to strike a balance between agricultural uses and development because it requires between 95 and 97 percent of the township to be used for agricultural purposes, due to the combination of the underlying zoning and the overlay restriction. The court further found the overlay restriction unreasonably disturbs expectations created by the existing township zoning ordinance because it effectively creates agricultural districts out of districts with nonagricultural stated purposes, completely changing the expectations under the zoning ordinance for nonagricultural districts.

In conclusion, the court held that because the agricultural soils overlay restriction, combined with the underlying zoning, causes the entire township to become a
de facto agricultural zone, it disrupts the balance between preserving agriculture and allowing development, as mandated by the MPC, and unreasonably restricts landowners’ use of their land. As such, the Commonwealth Court affirmed the decision of the trial court, holding the agricultural overlay restriction is unconstitutional as applied to areas of the township zoned controlled commercial, commercial, limited commercial and planned industrial, and that it violates the MPC.

For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected]