PA Commonwealth Court Decision Emphasizes Importance of Understanding Zoning Requirements

June 2011Newsletters In the Zone

On March 23, 2011, the Commonwealth Court of Pennsylvania, in Anter Associates v. Zoning Hearing Board of Concord Township, affirmed the order of the Court of Common Pleas of Delaware County, which had affirmed a decision of the Zoning Hearing Board of Concord Township (ZHB) denying Anter’s application for special exception to erect a billboard on a 2.25 acre tract of land.

The ZHB found Anter failed to comply with four sections of the zoning ordinance, specifically stating Anter failed to (1) prove that allowing the special exception would not be contrary to the standards of law, (2) provide the required historic resource study, (3) provide for a planted screen buffer and (4) provide the proper engineering certification. The Commonwealth Court sided with Anter on the first three points but found for the ZHB on the issue of Anter’s failure to provide the required engineering certification. Given that the requirement is set forth in the zoning ordinance, Anter could have, and likely should have, properly addressed that issue during the application and hearing process.

The court did not examine the substance of the issue of whether the special exception would be contrary to the standards of law, but rather stated Anter did not have the burden of presenting evidence relating to the criteria because “the ZHB did not request evidence on the criteria [nor did] an opposing party present evidence placing the criteria in issue.” As neither the ZHB nor any opposing party triggered the obligation to present evidence, Anter was not required to do so, and the ZHB should not have denied the application on the basis that granting the special exception would be contrary to the standards of law.

With regard to points two and three noted above, the court sided with Anter’s position that the erection of the billboard was not “development.” The court’s ruling, and Anter’s argument, were based upon the Pennsylvania Supreme Court holding in Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board, 594 Pa. 58 (2007), wherein the Supreme Court held billboards are not land development. Under the applicable zoning ordinance (Section 210-183.10) cited by the ZHB, a historic resource study is required when a landowner files an application for approval of a subdivision or land development plan. Because Anter was seeking a special exception, not approval of a land development plan, that ordinance was not applicable and no historic resource study was required. Similarly, Section 210-129.A of the zoning ordinance requires, as a “special development requirement,” a screen buffer planting strip at least 50 feet wide. As with the historic resource study, the court referred to the Upper Southampton case and found that because the erection of the billboard is not “development,” the screen buffer was not required.

On the fourth and final point raised by the ZHB in denying Anter’s application, the court held for the ZHB on the basis that Anter failed to supply, under seal and signature, the certification of a professional engineer stating the existence of the billboard meets all construction standards set forth in the township building codes. That requirement is clearly set forth in Section 210-210.L(8) of the zoning ordinance, and Anter quite easily could have complied with it. However, they did not, and therefore the application for special exception was denied. At the hearing before the zoning board, Anter did present a sign location plan that contained the seal and signature of an engineer. However, that plan indicated that construction of the billboard would be “in accordance with approved structural plans signed and sealed by a licensed professional structural engineer.” Anter provided such a plan to the ZHB, but that plan was dated March 20, 1989, 15 years before the township adopted the Uniform Construction Code applicable throughout Pennsylvania. Because that plan was outdated and Anter’s engineer was not present at the hearing to offer his certification, the court affirmed the ZHB’s ruling that Anter failed to provide the proper engineering certification required under the zoning ordinance, and thus Anter’s application for special exception was denied.

This decision underlines the importance of reviewing and understanding all the requirements of the applicable zoning ordinance prior to commencing, and throughout, the application and hearing process. Had Anter taken the necessary steps to get the required certification (or arranged to have their engineer present at the zoning hearing), the court likely would have ruled in their favor and overturned the ZHB decision.

For more information, please contact Brian J. Levin at 215.299.2838 or [email protected].

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