A pair of recent decisions from the Pennsylvania Commonwealth Court take on a familiar zoning challenge: whether steep-slope restrictions can — and should — be flexed to accommodate proposed development. Both cases involved property owners seeking to build on land that included slopes steeper than 25%. Both claimed their projects were reasonable and deserved relief. And both lost.

But the court’s reasoning in each case tells a slightly different story. Together, the rulings offer practical lessons for developers, financial professionals and land use planners navigating similar terrain.

Two Properties, Two Outcomes

In Eastern York School District v. Lower Windsor Township Zoning Hearing Board, the dispute involved a proposed elementary school on a 10-acre parcel adjacent to existing middle and high school buildings. Over a decade earlier, the school district had regraded part of the site to create athletic fields, creating some of the steep slopes in question. The district argued that since those slopes were manmade, the township’s ordinance shouldn’t apply.

The zoning hearing board disagreed and denied a variance. The district appealed and initially won in the trial court, which found ambiguity in the ordinance and ruled that it applied only to natural slopes. But the Commonwealth Court reversed. In a 26-page opinion, the court said the ordinance didn’t distinguish between natural and manmade topography, and the court declined to insert such a distinction. The bottom line: the slopes, however created, remained protected.

In Merion Ridge, LLC v. West Conshohocken Borough Zoning Hearing Board, a private developer sought multiple variances to construct a four-unit rental cluster on a steep and irregularly shaped lot. The plan required exceptions not only to steep-slope restrictions, but also to minimum acreage requirements for cluster development and sewer connection rules.

The developer presented expert testimony and several alternative plans, arguing that clustered development offered the best environmental outcome and financial viability. The zoning board denied the application, and the Commonwealth Court affirmed. In its 47-page opinion, the court found no unnecessary hardship. The panel noted that the developer had admitted that at least one unit could be built without relief. The court emphasized that financial motivations, while understandable, don’t justify a variance.

Practical Implications

The two rulings reflect a consistent reluctance by courts to second-guess local zoning ordinances or the boards that apply them. But read together, they also offer clear guidance:

• Stick to the text.
  In Eastern York, the absence of a specific exemption for manmade slopes proved fatal. If an ordinance is silent, don’t assume wiggle room.
• Hardship means more than cost.
  In both cases, the applicants framed their proposals as practical responses to site conditions. But the court reiterated that hardship must be rooted in the property itself—not in the economics of the project.
• The “minimum variance” standard still matters.
  The Merion Ridge developer sought permission to build four homes, not one, even though one was possible without relief. That made the request harder to justify.

For more information, please contact Daniel Lyons at 215.918.3693 or daniellyons@foxrothschild.com or any member of Fox Rothschild’s Real Estate Department.