IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Embreeville Redevelopment, L.P., :
Appellant :
:
v. :
:
The Board of Supervisors of : No. 1381 C.D. 2015
West Bradford Township : Argued: February 8, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
JUDGE COVEY FILED: March 2, 2016
Embreeville Redevelopment, L.P. (Embreeville) appeals to this Court
from the Chester County Common Pleas Court’s (trial court) June 30, 2015 order
dismissing its appeal and affirming West Bradford Township’s (Township) Zoning
Ordinance 2013-6 (Ordinance) as valid. The sole issue for this Court’s review is
whether the Township’s Board of Supervisors (Board) erred by finding that the
Ordinance, which amended the Township’s Code of Ordinances (Code), constituted a
curative text amendment rather than a zoning map change.1 After review, we reverse.
In May 2013, a group of investors who would later form Embreeville,
purchased 223 acres of land (206 acres of which is located in the Township)2 for
1
Embreeville presented the following specific issues: (1) whether the trial court erred by
finding the Ordinance valid despite that it was a zoning map change that required the Board to
follow certain notice requirements; and (2) whether the Board violated the notice requirements set
forth in Section 609 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31,
1968, P.L. 805, as amended, 53 P.S. § 10609. We restated the issues because if we conclude the
trial court erred, we need not address the second issue since the Township acknowledged that it did
not give the required notice for a zoning map change. Thus, the sole issue is whether the Ordinance
was a curative text amendment or a zoning map change.
2
The remaining acreage is located in adjacent Newlin Township.
redevelopment, primarily for residential use as “Embreeville Center” (Property). The
Property was zoned IM-Industrial/Mixed Use, and was historically used as a
Commonwealth psychiatric hospital. Because Embreeville’s proposed
redevelopment was not permitted as of right or by conditional use, before and after
acquiring the Property, Embreeville met with the Township regarding its
redevelopment plans. In April 2013, Embreeville presented its land use plan to the
Board at a public work session. It submitted additional plan updates and revisions
thereafter.
In June 2013, the Township commissioned the Brandywine
Conservancy, Inc. (Conservancy) to determine if the Code was meeting the
Township’s fair share housing obligations. On August 8, 2013, the Conservancy
reported that the Township faced a projected deficit of more than 1,000 multi-family
housing units between 2013 and 2040.
On August 13, 2013, the Board declared at a public meeting that the
Code was substantively invalid, in relevant part, because it failed to provide adequate
land area within the Township for the development of multi-family dwellings,
including townhomes, semi-detached homes and apartments. See Reproduced
Record (R.R.) at 9a-13a. On September 10, 2013, the Board passed Resolution No.
13-12, invoking a municipal cure period for the Code’s invalid portions (i.e., 180
days from August 13, 2013), pursuant to Section 609.2 of the Pennsylvania
Municipalities Planning Code (MPC).3 See R.R. at 14a-18a, 132a-134a.
On October 22, 2013, the Board conducted a public meeting at which
Conservancy professional land planners John Theilacker (Theilacker) and Tony
Robalik (Robalik) presented the Ordinance as a curative amendment to the
Township’s Code and comprehensive plan. See R.R. at 24a-27a, 60a-71a. In
3
Act of July 31, 1968, P.L. 805, as amended, added by Section 2 of the Act of October 5,
1978, P.L. 1067, 53 P.S. § 10609.2.
2
relevant part, the Ordinance would add medium and high-density residential uses to
the Township’s I-Industrial District. See R.R. at 139a-150a.
On October 23, 2013, Township Manager Tommy Ryan (Ryan) sent the
Ordinance to the Township’s Planning Commission (Planning Commission) and the
Chester County Planning Commission (CCPC) for review and comment. Ryan also
sent copies of the Ordinance to the Downingtown Area School District and adjacent
municipalities. See R.R. at 56a-59a. On October 30, 2013, Ryan posted the
Ordinance on the Township’s website as well as notice of a public hearing that would
be held on December 10, 2013 to consider adoption of the Ordinance.
By November 5, 2011 memorandum to the Board, Embreeville asked the
Township not to adopt the Ordinance, “but rather develop an ordinance amendment
that would allow the bulk of its medium and high[-]density development to occur on
the . . . Township portion of the Embreeville [Center], which is available, in need of
redevelopment, and more appropriate for such residential housing” than in the
Township’s I-Industrial District. R.R. at 76a. By November 6, 2013 letter,
Embreeville’s counsel presented to the Board an updated plan for the Property, a
planning statement and a proposed draft ordinance that would allow for the clean-up
and redevelopment of the site. See R.R. at 93a-108a.
On November 13, 2013, Ryan sent copies of the Ordinance to the Daily
Local News and the Chester County Law Library for public inspection. See R.R. at
78a. On November 14, 2013, at a public meeting with the Township’s Planning
Commission, Ryan discussed the Ordinance and, on November 16, 2013, the
Planning Commission visited the I-Industrial District to assess the suitability for
high-density residential housing options. On November 19, 2013, the Planning
Commission held a public meeting at which the Ordinance was discussed, and
Planning Commission Vice-Chairman Mark Slouf represented that the Planning
3
Commission had found the properties in the I-Industrial District suitable for medium
and high-density residential uses.
The Township published notice in the Daily Local News on November
18 and 25, 2013 that the Ordinance would be considered and possibly adopted at a
public meeting on December 10, 2013. See R.R. at 84a, 135a, 137a. The affected
properties were not posted, and no notices were sent to the property owners.
On December 3, 2013, the Planning Commission held another public
meeting to consider the Ordinance. The Planning Commission reviewed the CCPC’s
November 19, 2013 comments and conclusion that the medium to high-density
residential development would be an appropriate use in the I-Industrial area.4 The
Planning Commission also acknowledged comments from Embreeville’s land planner
Glackin, Thomas and Panzak and, thereafter, voted unanimously to recommend that
the Board adopt the Ordinance. At the December 10, 2013 public meeting, after
considering comments from the public, the Conservancy, the Planning Commission,
the Township’s solicitor, and Embreeville’s counsel and land planner, the Board
unanimously voted to adopt the Ordinance.
Embreeville appealed to the trial court, claiming that the Ordinance was
procedurally invalid because the Board violated the notice requirements for a zoning
map change as required by Section 609(b) of the MPC. The Board responded that it
was not required to, and did not, adhere to the notice requirements in Section 609(b)
of the MPC because, rather than a zoning map change, the Ordinance was a curative
text amendment covered by and passed in accordance with Section 609.2 of the MPC.
See R.R. at 158a. The Board further asserted that the Ordinance did not propose or
4
The CCPC recommended that the Township examine its comments before adopting the
curative amendment, and consider providing diversified housing opportunities throughout the
Township beyond those proposed in the Ordinance.
4
adopt a zoning map change,5 nor increase or decrease any zoning district size or
revise any zoning district boundaries. See R.R. at 153a-164a. Without taking
additional evidence, on June 30, 2015, the trial court dismissed Embreeville’s appeal
and upheld the Ordinance. See Embreeville Br. Ex. A (Trial Ct. Order). Embreeville
appealed to this Court.6
Embreeville argues that the Ordinance “effectuated comprehensive
change to [the Township’s] I-Industrial Zoning District because it effectively created
a new residential zoning district within that zoning district” (i.e., a zoning map
change) and, because the Township failed to post and mail notice of the public
hearing on the Ordinance in accordance with Section 609(b) of the MPC, the
Ordinance is invalid. Embreeville Br. at 11. We agree.
Initially, Section 609.2(2) of the MPC provides that once a municipality
declares that its ordinance is invalid, and proposes a curative amendment, it has 180
days to “enact a curative amendment . . . pursuant to . . . [S]ection 609 [of the MPC.]”
53 P.S. § 10609.2(2). Section 609(b) of the MPC states, in pertinent part:
(1) Before voting on the enactment of an amendment, the
governing body shall hold a public hearing thereon,
pursuant to public notice . . . . In addition, if the
proposed amendment involves a zoning map change,
notice of said public hearing shall be conspicuously
posted by the municipality at points deemed sufficient by
the municipality along the tract to notify potentially
5
The Township claimed that the map attached to the Comprehensive Plan Addendum was a
“Future Land Use Map” and not a zoning map. R.R. at 157a.
6
In this land use appeal, where the trial court does not take any
additional evidence, the Court’s review is limited to determining
whether the local governing body committed an error of law or an
abuse of discretion. Herr v. Lancaster C[nty.] Planning Comm[’n], . .
. 625 A.2d 164 ([Pa. Cmwlth.] 1993). The Court has explained that
‘the governing body abuses its discretion when its findings of fact are
not supported by substantial evidence.’ Id. . . . at 167.
Keinath v. Twp. of Edgmont, 964 A.2d 458, 461-62 n.3 (Pa. Cmwlth. 2009).
5
interested citizens. The affected tract or area shall be
posted at least one week prior to the date of the hearing.
(2) (i) In addition to the requirement that notice be posted
under clause (1), where the proposed amendment
involves a zoning map change, notice of the public
hearing shall be mailed by the municipality at least 30
days prior to the date of the hearing by first class mail to
the addressees to which real estate tax bills are sent for
all real property located within the area being rezoned,
as evidenced by tax records within the possession of the
municipality. The notice shall include the location, date
and time of the public hearing. A good faith effort and
substantial compliance shall satisfy the requirements of this
subsection.
53 P.S. § 10609(b) (emphasis added).
Accordingly, if the Ordinance was a curative text amendment, under
Section 609 of the MPC, the Township was required only to issue public notice of the
Board’s December 10, 2013 public hearing.7 If, on the other hand, the Ordinance
represented a zoning map change, in addition to the public notice, the Township had
an obligation to conspicuously post notice at the affected properties and mail notices
to the properties’ taxpayers.8 Thus, whether the Township fulfilled its notice
requirements under Section 609(b) of the MPC turns upon whether the Ordinance
was, in effect, a curative text amendment or a zoning map change.
7
Section 107 of the MPC defines “public notice” as
notice published once each week for two successive weeks in a
newspaper of general circulation in the municipality. Such notice
shall state the time and place of the hearing and the particular nature
of the matter to be considered at the hearing. The first publication
shall not be more than 30 days and the second publication shall not be
less than seven days from the date of the hearing.
53 P.S. § 10107. Here, the Township met the public notice requirement with its November 18 and
25, 2013 Daily Local News publications.
8
Because the Township deemed the Ordinance a text change rather than a zoning map
change, the Township did not post or mail notice of the December 10, 2013 public meeting.
6
The MPC does not define the terms “curative text amendment” and
“zoning map change[.]” The trial court stated: “Since the legislature has not defined
a zoning map amendment versus a text or curative amendment, such a determination
has been left to the judiciary.” Trial Ct. Order n.1 at 2. The issue in the instant case
was addressed by this Court in Takacs v. Indian Lake Borough Zoning Hearing
Board, 11 A.3d 587 (Pa. Cmwlth. 2010), and Shaw v. Township of Upper St. Clair
Zoning Hearing Board, 71 A.3d 1103 (Pa. Cmwlth. 2013).
In Takacs, the borough council appointed a committee to review how its
Ordinance No. 99 could be amended so it was less confusing. After the committee’s
study, public comment and the county planning commission’s input, the council
adopted amendments (Ordinance No. 144), which added uses to some of the
borough’s zoning districts, such as adding multi-family structures and commercial
boat docking in its commercial-recreational district. Takacs challenged Ordinance
No. 144’s validity because, among other things, council failed to provide notice of the
zoning map change. This Court held that because “the addition of permitted uses to a
zoning district does not constitute a zoning map change[,] . . . Ordinance No. 144 is
not invalid for failure to give notice of zoning map changes.” Id. at 593 (footnote
omitted).
In Shaw, a developer submitted an application to the township for a text
amendment to the zoning ordinance that would allow mixed-use development as a
conditional use in a special business district (Ordinance No. 2056). Shaw challenged
the amendment because, inter alia, the township failed to follow the notice
requirements for a zoning map change. This Court recognized that although
Ordinance No. 2056 on its face appeared to add mixed-use development as a single
conditional use in the special business district, in reality, it added at least 20
additional uses with a multitude of accompanying requirements and, thus, “created a
comprehensive zoning scheme that, in essence, created a new zoning district within
7
the existing special business district.” Id. at 1109. Accordingly, this Court held: “[I]f
an ordinance contains changes that are so comprehensive in nature as to result in a
substantial change to the manner in which the tract of land is zoned in comparison to
the surrounding tracts of land that were similarly zoned, then that ordinance will
constitute a map change.” Id.
Here, having examined Takacs and Shaw, the trial court concluded that
since the Ordinance “does not appear to be a ‘comprehensive zoning scheme[,]’” it
was a curative text amendment rather than a zoning map change and, thus, the Board
complied with the notice requirements of Section 609(b) of the MPC. Trial Ct. Order
n.1 at 4. The trial court reasoned:
The Ordinance herein adds by conditional use six (6) mid[-]
to high[-]density residential uses only consisting of garden
apartments, multi[-]family dwellings, quadraplexes,
townhomes, twins and duplexes. Although more than the
two added uses in Takacs, these additional uses are far less
in number and type of use than those permitted in the Shaw
case. The Ordinance itself consists of six (6) pages, five of
which relates not to conditional criteria as found in Shaw
but rather to new area, bulk and design standards. The
additional residential uses can be exercised by all property
owners within the [I-Industrial D]istrict, including those
that are currently using their properties for industrial
purposes, as long as the development tract contains ten (10)
acres. This again differs from the Shaw case. All property
within the [I-]Industrial [D]istrict herein is equally affected
and the Board has determined, with the aid of the []
Conservancy, that there are presently at least five (5)
parcels of land zoned within the current district that could
be developed with higher[-]density residential uses by
conditional use approval. Here, unlike in Shaw, the
Ordinance does not effectively rezone the property within
the district but only adds uses . . . to an already[-]existing
district and changes no district lines. There would be no
change to the Township zoning map boundaries other than a
legend change that would indicate additional uses permitted
within the existing zoning districts.
8
Trial Ct. Order n.1 at 3. However, a determination of whether a comprehensive
zoning scheme exists cannot be based upon the number of proposed changes, but
rather the overall effect of the changes. Shaw.
Section II of the Ordinance amended Section 450-57 of the Township’s
Code to revise the purpose of the I-Industrial District to include “a variety of higher-
density housing options . . . within close proximity to nearby commercial centers.”
R.R. at 60a. Section III of the Ordinance added under the conditional uses: “Garden
apartments, multiple-family dwellings, quadraplexes, single-family dwelling attached
(townhouses), single-family semi[-]detached (twins), and two-family detached
(duplexes), when public water and public (or community) sewer are available.” R.R.
at 60a. Sections IV through X of the Ordinance added to Section 450-57 of the Code
lot area, width and coverage requirements (Section IV), minimum setbacks (Section
V), building height requirements (Section VI), off-street parking regulations (Section
VII), design standards (Section VIII), conditional use standards (Section IX) and
screening requirements (Section X) for residential uses in the I-Industrial District.
Section XI of the Ordinance amended the Township’s Comprehensive Plan as
reflected in the Addendum attached as Ordinance Exhibit A.
The Comprehensive Plan Addendum summarized:
Within Chapter 8 of the Township Comprehensive Plan, a
new future land use category is added called ‘Medium to
High[-]Density Residential’, and the 2009 Future Land
Use Map is updated to reflect the new category. Two areas
are designated for medium to high[-]density residential land
uses and are depicted on the new Future Land Use Map
as diagonal lines overlapping the Industrial/Special Use
future land use category designations. Medium to high[-
]density residential land uses are most immediately planned
for vacant and underutilized parcels zoned industrial in the
northwest portion of the [T]ownship. As a revision to
Chapter 8, this category is described as:
9
‘Medium to high[-]density residential uses are appropriate
land use alternatives industrially[-]planned and zoned lands
when sewer and water infrastructure are available. Vacant
and under-developed lands in the northwest portion of the
Township zoned industrial uses are most immediately
planned for medium to high-density residential uses. Public
utilities, relatively immediate access to the Route 30
corridor to the north, and physically unconstrained land
exist here to support more densely[-]concentrated industrial
or residential development. Appropriate higher-density
residential uses include single-family semi[-]detached
(twins) and two-family detached (duplexes), single-family
attached (townhouses), quadraplexes, and multiple-family
dwellings and garden apartments, and residential
developments with a mix of such uses are encouraged. A
generalized density range of 4 to 8 dwelling units per acre is
appropriate for this use.’
R.R. at 149a (emphasis added).
Based upon our review of the record, the Ordinance adds an entirely new
and arguably incompatible use to the Township’s I-Industrial District in order to
allow the Township to meet its fair share housing obligations over the coming years,
and to make use of underutilized industrial tracts.9 As in Shaw, the added residential
uses necessitated numerous changes and conditions to make the uses more
compatible with an I-Industrial District and, although the amendments apply to any
Township tract in the I-Industrial District, they nevertheless changed the entire nature
of the I-Industrial District to what the Comprehensive Plan Addendum deemed a
“new future land use category.” R.R. at 149a. Accordingly, the Ordinance represents
a comprehensive zoning scheme which, like in Shaw, is a zoning map change which
required the Township to post and mail notice of the December 10, 2013 hearing in
9
For example, in the CCPC’s November 19, 2013 response to the Ordinance, it
recommended “that the Township require [residential development] applicant[s] to prepare a traffic
impact study, especially considering [] the potential for residential car traffic mixing with
commercial/industrial truck traffic.” R.R. at 81a.
10
accordance with the MPC. Therefore, the trial court erred by upholding the Board’s
determination that the Ordinance constituted a curative text amendment.
Based upon the foregoing, the trial court’s order is reversed.
___________________________
ANNE E. COVEY, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Embreeville Redevelopment, L.P., :
Appellant :
:
v. :
:
The Board of Supervisors of : No. 1381 C.D. 2015
West Bradford Township :
ORDER
AND NOW, this 2nd day of March, 2016, the Chester County Common
Pleas Court’s June 30, 2015 order is reversed.
___________________________
ANNE E. COVEY, Judge