Key Points

• Roads are part of the use. A private access road serving only a proposed warehouse is a “related impervious surface” subject to the ordinance’s 500-foot residential setback.
• Subpoena it or lose it. A zoning hearing board does not need the zoning officer’s testimony to interpret its own ordinance — and an applicant that drops its subpoena cannot later complain about the officer’s absence.
• Hardship must come from the land. Where the property supports many other uses that do not trigger the setback, the inability to build a warehouse is a self-imposed hardship that will not support a dimensional variance.

A developer’s plan to replace a restaurant, mobile home park and airport with a 709,000-square-foot warehouse has hit a wall — not because of the building itself, but because of the road needed to reach it.

In C&B Development, LLC v. Maxatawny Township Zoning Hearing Board, No. 982 C.D. 2025, the Commonwealth Court on October 14, 2026 affirmed decisions holding that the project’s only access road must meet the same 500-foot residential setback as the warehouse and that the developer was not entitled to a variance. The memorandum opinion is unreported, but it offers a clear look at how courts read use-specific setbacks for warehouse development.

One Road In

C&B Development is the equitable owner of a 75.5-acre tract in Maxatawny Township, Berks County, that sits in three zoning districts and has frontage only on Kutztown Road. The surrounding area mixes commercial and residential uses with the Kutztown University campus. The warehouse would sit on the Light Industrial (L-I) portion of the property, which can be reached only by a new private road — “Road A” — running from Kutztown Road through the commercial district.

The township’s 2022 zoning amendments made warehouses a conditional use in the L-I district, subject to Section 593(c). That section requires all principal and accessory uses — expressly including “all related impervious surfaces required for the warehouse” — to be at least 500 feet from any building occupied by an existing residential, institutional or educational use. Given the location of nearby homes, there was no way Road A could satisfy that requirement.

In August 2023, the zoning officer determined that Road A was an impervious surface subject to the setback and that the developer needed a variance before its conditional use hearing could proceed. The developer appealed to the Zoning Hearing Board (ZHB), which upheld the determination and denied the alternative request for a dimensional variance. The Berks County Court of Common Pleas affirmed.

On appeal, the developer raised three questions: (1) whether the ZHB abused its discretion by affirming the zoning officer’s determination that Road A was an accessory use subject to Section 593(c); (2) whether the ZHB failed to interpret the Zoning Ordinance in favor of the developer; and (3) whether the ZHB committed an error of law by applying an incorrect legal standard to developer’s request for a dimensional variance.

The Missing Zoning Officer

The zoning officer did not attend the ZHB hearings on the advice of counsel because the property’s record owners had sued him in federal court over the project. The developer argued that the ZHB could not lawfully adopt his interpretation without hearing from him and should have drawn an adverse inference from his absence.

Judge Patricia A. McCullough, writing for the panel, rejected both arguments. Under the Municipalities Planning Code (MPC), zoning hearing boards hold independent authority to interpret and apply zoning ordinances, so the officer’s testimony was “not essential.” The developer’s own engineer conceded that Road A was an impervious surface and that there could be no warehouse without it.

Just as important, the developer had the chance to compel the officer’s attendance. The ZHB gave it the opportunity to subpoena him after the first hearing, but at the second hearing the developer expressly withdrew its intention to do so. Having passed on that opportunity, the court said, the developer “cannot now be heard to claim prejudice from his absence.” The court added that the MPC lets parties request subpoenas but does not obligate a board to secure evidence for an applicant.

No Conflict, No Tie to the Owner

The developer next argued that the ordinance conflicted with itself — permitting warehouses “by right” while making them impossible to build — so the ZHB should have resolved any doubt in the owner’s favor under Section 603.1 of the MPC.

The court found no merit in the developer’s arguments. The developer relied on a superseded 2012 provision; the 2022 amendments, which the developer’s own expert confirmed it was proceeding under, made warehouses a conditional use expressly subject to Section 593. Read together, the provisions are easily harmonized: they “clearly intend to direct warehouse uses” to parts of the township where there is no adverse impact on residents or students. The fact that a warehouse simply cannot fit on this particular lot does not create an “internal conflict.”

The court also rejected the argument that the ruling left the L-I land with no usable access. The determination applied only to the proposed warehouse, and the L-I district permits more than two dozen uses. By-right manufacturing uses there are capped at 25,000 square feet — well below the 100,000-square-foot threshold that triggers a similar 500-foot setback for industrial uses. To the extent the developer believed the ordinance excluded every plausible use, the court noted, it needed to bring a validity challenge under the MPC, which it never did.

No Variance for a Self-Imposed Hardship

Finally, the developer claimed the ZHB applied the wrong standard by requiring proof that there were “no possible uses” of the property without a variance. The court disagreed, finding that the ZHB tracked the ordinance’s variance criteria “practically verbatim.”

While the burden for a dimensional variance is lighter than that of a use variance, it still requires a hardship tied to the property, not the owner’s preferred use. The developer admitted in its brief that the L-I lot could feasibly be used for other purposes. Its inability to fit a warehouse and Road A within the setback was therefore “self-imposed.” The court also rejected the developer’s claim of a “mandatory inference” that a permitted use would not harm the public interest — noting that the warehouse was not a by-right use and that the ZHB had credited evidence about hundreds of tractor trailers on a road heavily used by residents and university students.

Takeaways

First, use-specific setbacks that reach “related impervious surfaces” will be read to include access roads and drives. Developers should map access routes against setback lines at the earliest planning stage, not just building footprints.

Second, applicants bear the burden of building their own record. If a zoning officer’s testimony matters to your case, subpoena the officer — and do not withdraw the request.

Third, a dimensional variance will not rescue a project where the property can accommodate other permitted uses. If an ordinance effectively zones out every realistic use of a site, the proper vehicle is a validity challenge under the MPC, raised before the board rather than for the first time on appeal.

* Julia Snyder is a 2026 graduate of Villanova University school of Law. She was a summer associate at Fox in 2025 and joined the firm as a law clerk with the Fall 2026 class of associates. She is currently awaiting admission to the bar. 

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