Challenge to the Zoning Ordinance and Curative Amendment

Author: LegalEase Solutions

  1. INTRODUCTION

Under Section 205, Steep Slope Conservation Overlay ordinance, all construction is prohibited in the overlay district for slopes exceeding fifteen (15) percent, even though there are more reasonable means and methods for protecting the public health, safety, morals and welfare in that area.

The ordinance fails to bear a reasonable relationship to the police powers and is discriminatory, irrational, overbroad, and is a taking without justification or compensation.

The regulation takes the person’s right to use their land without reasonable justification.

  1. STATEMENT OF THE LAW

The challenging party to a zoning ordinance must show that it is unreasonable, arbitrary, or not substantially related to the police power interest that the ordinance purports to serve.  Euclid v. Ambler Co., 272 U.S. 365.

An ordinance will be found to be unreasonable and not substantially related to a police power purpose if it is shown to be unduly restrictive or exclusionary.  An ordinance that has an exclusionary result or purpose cannot be substantially related to the general welfare.  Similarly, an ordinance will be deemed to be arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for such disparate treatment.

Moreover, in reviewing an ordinance to determine its validity, courts must generally employ a “substantive due process inquiry, involving a balancing of landowners’ rights against the public interest sought to be protected by an exercise of the police power.”  The townships or courts must engage in a meaningful inquiry into the reasonableness of the restriction of land use in light of the deprivation of landowner’s freedom thereby incurred.  A conclusion that an ordinance is valid necessitates a determination that the public purpose served by the ordinance adequately outweighs the landowner’s right to do as he sees fit with his property, so as to satisfy the requirements of due process.  C & M Developers, Inc., Appellant v. Bedminster Township Zoning Hearing Board, Appellee, 473 Pa. 2; 820 A.2d 143; 2002 Pa. 

III.  ARGUMENT

OVERBROAD and VAGUE

The ordinance is overbroad because it affects all tracts regardless of their size, shape, suitability for building, location and topography.  It even affects tracts to have slopes less than fifteen (15) percent, especially if the Township personnel consider that area a plateau.

There is no finite definition for a plateau or for a peninsula.  Nor is there any objective standard as to how the property is determined to be a plateau or peninsula.  There was no testimony and there are no standardized procedures in place by the Township to determine the difference between those two types of areas.

Also, there is no regard as to whether there is already access to the tracts that are subjected to the prohibition on construction for slopes greater than fifteen (15) percent.  Therefore, if the tract already has an existing access and it is surrounded by steep slopes but there is a suitable area for construction that is less than fifteen (15) percent, there will still be a prohibition on construction on the entire tract.

The ordinance is vague.  It contains no definitions or standards for important terms, such as plateau or peninsula.  It doesn’t distinguish between man-made or natural slopes.  It is also difficult to understand and thus enforcement is based on subjective determinations and interpretations.

The ordinance also affects a large area of the Township without consideration to other areas in the Township that have the same slope percentages.

UNREASONABLE

The steep slope conservation overlay ordinance is completely exclusionary and prohibits construction as to any property in the zone that is considered a plateau and further any property that has slopes in excess of fifteen (15) percent without compensation.

It is unreasonable because the open space zone allows for certain uses by right that involves construction and yet provides exception for utilities thus allowing earth disturbance.  Therefore, the elimination of construction in this manner does not eliminate all the earth’s disturbance thus contradicting supporters of the ordinance.

There are other more fair and reasonable means to accomplish protection of erosion and sedimentation             control and storm water management.  Land development plans, erosion, sediment control plans and storm water measures can all be required as a reasonable alternative means to accomplish those goals.  Further, the proper maintenance and enforcement of erosion sedimentation control and storm water measures.   Also, the goals can be accomplished through regulation on the amount of land that can be disturbed and developed without the exclusion the complete right for people to construct on their property.

The Township’s concerns about overdevelopment of the mountain are unfounded and unsupported by evidence.  There are numerous factors involved for the properties in the mountain and the overlay district could be developed.   First, there can be no more subdivision of the loss in that area so a number of lots will never be able to be built upon because they will not pass for a septic system.

Some lots may never be able to obtain access either legal access or access across areas of slopes less than twenty-five (25) percent.  A number of lots are just not conducive to being able to build a residence upon them because of location, the shape and size of the lot, and the cost factor.  Further, some landowners will keep their lots as open space and never use them as a building lot.

Also, another important factor is that some of the lots in the overlay district will be able to be built upon regardless of the slope provision because they may be considered a peninsula or not have slopes in excess of fifteen (15) percent.  

 IRRATIONAL

The Township failed to use studies or standards to determine the threshold slope percentage of fifteen (15) percent.  It is contradictory to the DP regulations where septic systems are allowed on slopes up to twenty-five (25) percent.  Further, the approval and enactment of the ordinance was contradictory to the York County Planning Commission, which stated that the ordinance was unduly restrictive and basically a taking without just compensation.

There have been no studies for landslides effects and cause, especially when given that there are other methods to prevent landslides such as restricting and regulating the amount of clearing and land development on the property.

There were no surveys, studies or computations done to determine how many properties were actually affected by the ordinance or how many properties could be built upon if the ordinance was not in effect.

They are too subjective for standard enforcement.  The methods for determining the difference between a peninsula and a plateau, and how they were determined, and who determines them are too subjective and have no standards for determination or enforcement.    Further throughout the hearings, we never got a clear explanation of the process for making those determinations or who makes those determinations.

Moreover, there are other areas of the Township that have the same problems with erosion and sedimentation and storm water management and would continue to have those problems that are not restricted by the complete elimination of development wherein this overlay zone is going to the extreme of preventing all construction to try to eliminate those issues while it is an ongoing problem in all areas of the Township.

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ARBITRARY

The 15% slope threshold was chosen arbitrarily without any studies or statistics or legal precedence.   There is no record of why 15% was chosen and not 25% as used by DEP and most other townships.

Furthermore, the ordinance affects similar properties in different manners.  Properties in the same zone may have steep slopes that are in excess 15%, but are allowed to have construction since they may be considered a “Peninsula”.  The exception for “Peninsula” may apply only because of an existing road, a Township line or County line is adjacent to the property.   Because of these exceptions, the goals of the ordinance are not being effectively met and the ordinance is being arbitrarily applied.

  1. CONCLUSION

To simplify this matter, the issue comes down to a balancing act between deprivation of the property owners’ rights and the protection of the public health, safety and welfare of the community.  A complete exclusion of construction is an extreme deprivation of a person’s right to use their property.  The current ordinance is the most extreme measure the Township can take to try and remedy some issues of storm water and erosion and sedimentation and is not necessary to accomplish the goals.  There are numerous other methods that are more fair and reasonable to the Township that accomplish those goals without a complete exclusion and prohibition of construction.

I respectfully request that the Township amend their ordinance as to what we have suggested or something that is more fair and reasonable to the property owners.