A recent decision by the Northampton County Court of Common Pleas demonstrates how robust zoning ordinances can protect the environment and surrounding communities from the impacts of logistics development. 

Background

Developer Water’s Edge at Windgap, LLC (“Water’s Edge”), sought to redevelop an existing golf course to build two warehouse buildings with a combined floor area of 488,150 square feet. However, the Township’s zoning ordinance constrained the site’s developable area by limiting disturbance of steep slopes and woodlands and requiring an earthen berm between the building and the roadway. Seeking to maximize the size of the buildings, the developer challenged these restrictions before the Moore Township zoning hearing board (“ZHB”).

Ordinance Restrictions Protect the Environment and Community Water’s Edge first argued that it should not be required to preserve steep slopes on the property because the existing slopes were “manmade” slopes constructed as part of the golf course design, not “natural” slopes. The Court agreed with the ZHB that this distinction did not matter, as the Moore Township zoning ordinance did not distinguish between “manmade” and “natural” slopes. In fact, the Court held, such a distinction would lead to “thorny-bordering-on-philosophical” problems, as developers and the Township would be forced to decide the amount of human intervention that would transform a steep slope or other feature from a natural feature into a manmade one.

The  ordinance also required the preservation of at least 60% of the woodland on the site and required a 100-foot wide earthen berm between the building and the road frontage. Water’s Edge claimed that it was impossible to comply with both of these provisions because the majority of the woodland on site was located along the road frontage where the berm was to be located. Alternatively, the developer sought a variance from the woodland disturbance requirement, claiming that having to both preserve the woodland and construct a berm was an undue hardship. 

The Court disagreed. It upheld the ZHB’s ruling that the developer was required to comply with both the earthen berm requirement and the limitation on woodland disturbance. There was nothing in the ordinance, the Court held, that required the developer to construct the earthen berm immediately adjacent to the roadway, where the woodland was located. The berm could be located anywhere between the building and the road frontage, including between the building and the woodland. Yes, this would likely require the developer to reduce the size of the buildings, but the Court held that this was no hardship, as the developer “provided no reason, aside from an understandable desire to maximize its profits, why it could not construct a smaller warehouse, build one warehouse rather than two, or otherwise modify its plans to strictly comply with the Zoning Ordinance’s required woodland protection rate.” “Where no hardship is shown,” the Court concluded, “or where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the unnecessary hardship criterion required to obtain a variance is not satisfied.” 

Power to Restrain Development is Limited Where No Ordinance Requirements Exist

This same decision also demonstrates how municipalities’ ability to constrain development is limited when that power is not expressly set forth in an ordinance. As with most logistics development, the Water’s Edge project was to occur “on spec,” meaning that the developer planned to design and construct the facility before identifying a tenant or end user for the space. The ZHB sought to require the developer to identify a specific tenant, asserting that the information was vital to evaluate the effect the development would have on the community, particularly its traffic traffic impacts. The ZHB reasoned that this information was essential because the buildings would be the two largest buildings in the Township, would likely generate the most traffic, and were located several miles from the nearest highway.

The Court held that the ZHB could not demand this information from the developer because warehouses were a permitted use on the site, and no provision of the zoning ordinance gave the Township the right to deny the project based on traffic concerns or any other consideration beyond the specific requirements of the Zoning Ordinance. When a use is a permitted use, it is allowed by right as long as the developer complies with the specific requirements of the zoning ordinance, even if the resulting development has a substantial adverse impact on the surrounding community. Therefore, the Court held that “so long as the Zoning Ordinance’s dimensional restrictions and other applicable regulations are met, we find no authority to support the notion that the Board may deny permission to an applicant based on a finding that this particular planned warehousing use is exceptionally impactful and worrisome compared to other warehouses.”

The outcome would be different, the Court opined, if warehouses had been a conditional use or special exception use instead of a permitted use. Approval for these types of uses may be denied if it is demonstrated that the specific development proposed would result in a substantially greater detriment to public health, safety, and welfare than a typical development of that type. Therefore, if warehouses were a conditional use or a special exception use on the property, the ZHB would be justified in seeking more information about the end user of the space and their proposed operations to ascertain the extent of the impact on the public. As it was, however, the ordinance did not give the ZHB that power, and the ZHB would have no lawful use for the requested information. Realizing this issue, Moore Township has since amended its ordinance to designate warehouses as conditional uses wherever they are permitted.

PennFuture’s Model Logistics Use Ordinance 

The above case illustrates why PennFuture developed Living With Logistics: A Model Logistics Use Zoning Ordinance for Pennsylvania Municipalities. Many Pennsylvania municipalities lack the carefully-crafted, robust zoning ordinance provisions necessary to appropriately control the proliferation of logistics uses such as warehouses, distribution centers, and fulfillment centers. Others, like Moore Township when the Water’s Edge project was proposed, have ordinances that are strong in some respects but could be strengthened in others. Living with Logistics aims to give municipalities the resources they need to understand the proliferation of logistics development and to craft ordinances that will maximize their power to guide and control it for the benefit of the environment and neighboring residents.