A Potential Increase in Traffic Is Not Enough To Defeat a Conditional Use Request

August 2011Newsletters In the Zone

In Joseph v. North Whitehall Township Board of Supervisors, 16 A.3d 1209 (Pa. Cmwlth. 2011), decided March 11, 2011, the Commonwealth Court affirmed the decision of the trial court and the Board of Supervisors of North Whitehall Township granting the application of Wal-Mart Stores, East, L.P. seeking conditional use approval for a planned commercial development.

Wal-Mart acquired 40 acres of vacant land in North Whitehall Township, Lehigh County, which was within a PC Planned Commercial Option zoning district. Under Section 308.C of the township zoning ordinance, a planned commercial development in the PC zoning district is permitted as a conditional use. An applicant for conditional use approval for a planned commercial development must comply with the specific standards under the relevant zoning ordinances. Generally, the court noted, once an applicant has established compliance with the zoning ordinance, the applicant must be granted a conditional use absent an objector’s demonstration of evidence that the proposed use will have a detrimental effect on the public health, safety and welfare.

The objectors in Joseph appealed the trial court’s ruling affirming the board’s grant of conditional use to Wal-Mart based on two relevant zoning issues. First, the objectors challenged the board’s interpretations of the provisions of the zoning ordinance by failing to require Wal-Mart to present individual uses to be established in the proposed planned commercial development and to present evidence of compliance of specific standards for such uses. The objectors relied heavily on Elizabethtown/Mt. Joy Assoc. v. Mount Joy Township Zoning Hearing Board, 934 A.2d 759 (Pa.Cmwlth. 2007), to support this argument. In that case, the Commonwealth Court upheld a denial of a special exception application of a shopping center, finding a general plan and a promise to comply with the zoning ordinance was insufficient as the court wanted to see specific standards of uses for the shopping center. Here, however, the court struck down the objector’s argument and distinguished the previous finding in Elizabethtown/Mt. Joy Association. The court noted that there, the conditional use application had already been approved and what the court was deciding was the second procedural step regarding specific uses located in the proposed development based on the multitier procedural scheme by the zoning ordinance. By contrast, all that Wal-Mart was required to do in this initial procedural step for conditional use approval was meet the criteria for a planned commercial development, not establish the individual uses to be established after their application was approved.

The objectors next argued the board incorrectly found the use of the planned commercial development would not have a detrimental effect on the public by concluding first that the use will not result in or add to traffic hazards or traffic congestion, and second that Wal-Mart did comply with the wastewater treatment requirements of the zoning ordinance.

With respect to the traffic hazards and congestion, the court found the board properly determined that proposed commercial development will not result in or substantially add to a significant traffic hazard or traffic congestion. First, the court noted an increase in traffic due to a proposed use would not alone defeat a conditional use request. In order to deny a request based on traffic issues such as this one, it must be highly likely the use will create traffic patterns not normally generated by the proposed type of use and the traffic will pose a substantial threat to the health and safety of the community. The court affirmed the board’s determination that the traffic would not be greater than what would be normally generated by the proposed use, based on Wal-Mart’s project manner testimony at the trial court level. The project manager had previously stated that because the property is located near a congested highway and he examined the intersection near the property for traffic congestion issues, noting the former owner had made significant improvements for traffic issues, and he himself examined the congestion and traffic at the intersection, he determined the traffic would not be greater than what might be expected in normal circumstances. The court gave great deference to the trial court’s reliance on this testimony.

As to the wastewater treatment requirements, the court found Wal-Mart did comply with the requirements of the zoning ordinance, which mandate the applicant, Wal-Mart, show the use will not have a serious threat of inability to comply with the performance standards of the ordinance in Article V, which requires wastewater disposal to meet state, township and sewage facility authority requirements. While objectors argued Wal-Mart intended to use a private sewer system instead of the public sewer system as required by performance standards set by the state, township and sewage facility, the record shows Wal-Mart’s application expressly stated the public sewer facilities would be used. Thus, they complied with the zoning ordinance requirements.

The Commonwealth Court thus affirmed the trial court’s order to affirm the board’s decision, granting Wal-Mart’s application seeking conditional use approval for a planned commercial development.

For more information, please contact Carrie B. Nase at 215.299.2030 or [email protected].