A recent Pennsylvania Commonwealth Court decision underscores the lesson that developers should carefully address every zoning component and, when in doubt, request relief or secure a formal determination from a zoning officer that relief is not required.

In Grim v. Maxatawny Township Board of Supervisors, a five-judge panel vacated the approval granted to developer Duke Realty Limited Partnership for a 1.6-million-square-foot warehouse and distribution facility.

The court ruled in favor of objectors who claimed that the developer failed to obtain a required zoning variance to permit warehousing within 500 feet of an adjacent property containing a residential dwelling; and also failed to obtain a required special exception to permit warehousing activity.

In its 19-page decision, the court found that Maxatawny Township’s zoning ordinance contains conflicting provisions. One provision allows warehousing and distribution as a permitted use in the light industrial district. But another provision requires a special exception from the Township’s Zoning Hearing Board for warehousing activity or warehouse facility. 

The ordinance also expressly states that in case of a conflict in its provisions, the more restrictive provision applies. Objectors argued that the developer therefore had to obtain a special exception for the use proposed in its plan.

The developer argued that the board of supervisors’ decision in its favor was entitled to deference. But the Commonwealth Court disagreed, and vacated the development plan. The judges concluded that a remand to the board is necessary to allow it to resolve the errors.

As the court’s decision in Grim reveals, it is imperative for developers to have their counsel and engineers carefully review the ordinances in the municipalities they are considering developing within. Many zoning ordinances contain a similar provision to the one in Grim, where developers do not receive the “benefit of the doubt” when the ordinance contains conflicting regulations.