The MuNews

The Commonwealth Court recently ruled that open space requirements in a zoning ordinance cannot be satisfied by using open space in an adjoining municipality. Hamilton Hills Group, LLC v. Hamilton Twp Zoning Hearing Board, 2224 C.D. 2009 (Filed 9/1/2010).  In this case, Hamilton Hills Group [“Group”] proposed to build 325 townhouses on land that spanned 3 municipalities.  All of the townhouses were to be built within Hamilton Township. The Township’s zoning ordinance required 300 s.f. of open space for each unit.  All of the open space was proposed in the adjacent townships.  The Group argued that when viewed as whole, the property contained sufficient acreage to meet the open space requirements, and since the zoning ordinance did not specifically require the open space to be within the Township, the zoning ordinance must be interpreted in the Group’s favor.  The Commonwealth Court refused to buy this argument.  Rather, the Commonwealth Court found that the property was zoned R-3, which allows higher density development in exchange for sufficient open space.  The zoning ordinance reflects an “overarching concern with the effect of zoning and land use regulation within the Township.”  The Commonwealth Court noted that numerous sections of the MPC indicate that there is an underlying assumption that zoning decisions can be made based on factor’s within the municipality’s jurisdiction.  The Commonwealth Court also noted that if the Township was compelled to accept open space in another jurisdiction, the Township would not be able to ensure that the Group did not develop the open space in the future since the open space would be out of the Township’s control.

The Commonwealth Court has ruled that letting in a third party during an executive session for litigation purposes violates the state Sunshine Act.  Trib Total Media Inc. v. Highlands School District, 1588 CD 2009 (filed August 5, 2010).  In Trib, the school district went into an executive session with a business owner who had filed a tax assessment appeal.  The newspaper was excluded from the executive session, and brought legal action against the school district for violating the Sunshine Act.  The lower court threw out the newspaper’s complaint, but the Commonwealth reversed on appeal.

             Section 708(a)(4) allows an agency to hold an executive session to “consult with” its attorney or other professional advisor in connection with litigation.  Section 703 defines an executive session as “a meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting.”  The Commonwealth Court held that this language does not apply to subsection (a)(4) because this subsection identifies specific people who the agency can meet with in private, i.e. its lawyer or other professional advisor. The other subsections in Section 708(a) do not contain any such limitation.  Subsection (a)(4) also uses the term “consult with” which has a different meaning that the word “discuss” that is used in the other subsections; therefore, only attorneys and advisors may participate in an executive session under subsection (a)(4).  Additionally, the language in (a)(4) reflects a legislative intent to facilitate confidential communications between the agency and its counsel.  If a third party is in the room, then attorney-client privilege is destroyed.

             The Commonwealth Court dismissed the argument that the definition of “executive session” allows third parties to be present by finding that there is nothing in the Sunshine Act to suggest that opposing parties are necessary participants in an executive session called for the permitted purpose of seeking legal advice.  The scope of subsection (a)(4) is confined to private consultations  between the agency and its counsel or advisors regarding litigation strategy and information.

In Briar Meadows Development, Inc., v. South Centre Township Board of Supervisors, the developer had an option on two tracts of land and filed a request to rezone the parcels from agricultural to commercial.  The request was denied and Briar Meadows then filed a curative amendment claiming that the current zoning was inconsistent with the Township’s comprehensive plan and that its request is consistent with the comprehensive plan, would naturally extend the commercial zoning district and was reasonable.  Both the board of supervisors and the lower court denied the curative amendment.  The Commonwealth Court affirmed.  A landowner cannot bring a challenge to a zoning ordinance on the basis that the ordinance is inconsistent with and fails to comply with the comprehensive plan.   The Commonwealth Court noted in its decision in Caco Three, Inc. v Board of Supervisors of Huntingdon Township, 85 A.2d 991 (Pa. Cmwlth.), petition for allowance of appeal denied, 580 Pa. 707,  860 A.2d 491 (2004), that “while a comprehensive plan is a useful tool for guiding growth and development, it is by its nature, an abstract recommendation as to land utilization.”  Therefore, a comprehensive plan cannot be a proper basis for a substantive challenge to a zoning ordinance.