Zoning Appeal Victory Reveals Focus on Fairness in PA Courts

July 20, 2020 – Press Releases

In a victory for a Fox Rothschild Zoning & Land Use litigation team, the Pennsylvania appellate courts have sent a clear message to local municipalities that they cannot pull the rug out from under a business that has openly operated for years by unfairly raising a legal issue that would force it to shut down.

Fox Rothschild Real Estate attorneys Robert W. Gundlach Jr. and Clair E. Wischusen successfully argued in Victory Gardens Inc. v. Warrington Township that their client relied on advice from the township that no permit was needed when it opened a mulch facility in a residential agriculture district in 1993.

Fox argued that the township acted unfairly when it issued a notice in 2015 that Victory Gardens’ mulching operation was an “industrial use,” triggering a five-year dispute that the township took all the way to the Pennsylvania Supreme Court.

The court battle ended on July 7, 2020, when the Supreme Court refused to hear the township’s appeal of a Commonwealth Court’s decision in favor of Victory Gardens.

The Commonwealth Court, in a January 2020 decision, adopted Fox’s arguments that the township’s actions should be prohibited under the doctrine of equitable estoppel because the evidence showed that Victory Gardens had relied on advice from the township zoning officer when it made a substantial investment to launch the business, including a lease on an eight-acre tract of land and the purchase of a retail facility and dump trucks.

Victory Gardens proved it had an “innocent belief” that the use was permitted based on the township’s erroneous advice, the Commonwealth Court found, and that allowing the township to enforce the zoning restrictions now would result in a hardship and loss of the investment.

Judge Christine Fizzano Cannon noted in her 13-page opinion that “equitable estoppel is an unusual remedy granted only in extraordinary circumstances.”

But Victory Gardens proved its equitable estoppel claim, Judge Cannon found, by showing that “over the course of … 14 years and through a succession of meetings, discussions, and agreements with VG regarding various aspects of VG's mulching operation and its effect on the area around the Farm, the Township repeatedly confirmed that VG was allowed to run its mulching operation at the Farm without a permit and/or variance.”

She noted that the township had even purchased mulch for its own facilities and acknowledged at public meetings that the mulch operation was a permitted use.

Gundlach said the outcome of the case shows that the courts are focused on fundamental fairness.

“Winning an equitable estoppel claim is never easy, but the evidence was clear in this case that our client had relied on bad advice from the township and therefore was able to show it had an innocent belief that its zoning was in order all along,” Gundlach said.