Zoning Amendment Could be Solution to Saving the Tennis Courts

May 1 was the deadline for the School District to submit their variance application to the Township in order to be listed on the Zoning Hearing Board’s May 23 meeting agenda.  According to Township Manager Bill Martin, the application was received today. Some of the neighbors of the Valley Forge Elementary School tennis courts may think there is nothing to stop the ZHB from awarding the variance, but that may not be the case.

The combined impervious coverage of the tennis courts and the additional parking spaces exceeds the township stormwater requirement. Based on the PA Municipalities Planning Code (MPC) there appears to be no legal basis for Tredyffrin’s Zoning Hearing Board to grant a variance to the School District.

Under the Pennsylvania Municipalities Planning Code (MPC) a zoning hearing board “may grant a variance, provided that all of the following findings are made where relevant in a given case:

  1. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
  2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable reasonable use of the property.
  3. That such unnecessary hardship has not been created by the appellant.
  4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
  5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.”

According to the MPC, the School District needs to show an economic hardship for ZHB to grant a variance in this matter. However, the additional parking spaces at VFES are optional (not a requirement) for the School District and therefore do not constitute an economic hardship. I have been forced to accept that using the logic that the impervious coverage (of the tennis courts plus the additional parking) is only a ‘little over’ will not satisfy the MPC requirement. There is also the matter of a strict stormwater policy in Tredyffrin, and an important issue that is unlikely sidestepped.

A solution that would save the tennis courts, allow the additional parking spaces and not require a ZHB variance was presented to the School District and Township by John Petersen, a former ZHB member.  I was copied on the following email sent to Michelle Kichline, chair of the Board of Supervisors, Kevin Buraks, President of the School Board and the Township and School District solicitors, Vince Donohue and Ken Roos, respectfully.

Here’s a suggestion…

The BoS offers up a zoning amendment that creates an exception for what is counted as impervious coverage: tennis courts, basketball courts, etc. that are available for public use (defined as owned by either the township or school district) that exists on or before the date, the zoning amendment is ratified. A possible permutation is that the first 1K square feet is exempted.

I normally don’t endorse amending the ZO based on specific facts. Like everything, there are always exceptions. For an exception, there must be some solid criteria to support such:

1. The items covered by the exception can never increase

2. Its not de-facto spot zoning because there are any number of places where this applies

3. Not likely to have an adverse impact on storm water (TESD will still have storm water issues to deal with in the parking long construction)

4. There is a strong public policy argument in retaining recreational facilities

I don’t think you will get much, if any push back on this. Is it legal? That’s up to you guys to figure out. In my opinion, this is not objectionable, unlike the recent C-1 amendment. The school district is not just any ordinary landowner.

Baring this, there is no way to keep the courts and build the additional parking. There are no legal grounds to grant a variance.

There’s an old saying that bad facts make bad law. In this case, bad facts sometimes require us to re-visit the law. In 1,000 cases, there may be one time when we should do that. I think this is one of those times. The change is very limited and is in keeping with public policy and finally, no material adverse impacts to storm water. The school district should hot have to choose between courts that have been there for 40+ years and the need to add much needed parking.

John

Although there were follow-up emails sent, to date no one has responded to Mr. Petersen’s suggestion.  The four people receiving Petersen’s email (Kichline, Buraks, Donohue and Roos) are all attorneys and therefore presumably understand the standard required by the Municipalities Planning Code for the Zoning Hearing Board to issue a variance. In fact, if memory serves me, Michelle Kichline served on the ZHB before her election to the Board of Supervisors. Considering the legalities of the MPC, why should the School District bother to submit a variance application?  If not economic hardship, on what grounds is the School District seeking a variance?

Even if the Township reduces the fees to the School District, there are professional costs (legal, architectural) involved with the ZHB variance application.  Why not consider a zoning amendment – the tennis courts are saved and the parking lot is expanded.  Looks like a win-win for the Township, the School District and the residents who use the tennis courts!

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Note: I am sending this article to Kichline, Buraks, Donohue and Roos asking them to comment directly to me on (1) the grounds for the ZHB to issue a variance to the School District and (2) the consideration of a zoning amendment.  Their responses will be posted on Community Matters.

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13 Comments

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  1. Remind me again: why is it so imprtant that we “save” the tennis courts used by a handful of township residents?

    We have all been effected by cuts, have dealt with problems due to excess water, and have been told “No” when we really really wanted to hear “Yes”.

    If the township backs down on this one, every cutback will be challenged and subject to review next to this one.

    I have already noticed both the the Township Manager and my township representative on the board of supervisors.

    If you are an avid tennis player, join a club!

    [Reply]

  2. Perhaps people have not responded to John’s ideas because they do not want to be quoted and held to their responses. It does not mean people aren’t thinking about it.

    John makes a solid argument for taking care of the issue of PUBLIC recreational assets for the long term. It eliminates a township asset from being bandied around for construction tradeoffs. Besides, it would cost the TESD $24,000 to demolish the courts. With or without the courts, the TESD still has to do stormwater remediation. In regards to water run-off, grass in place of the courts is little better than impervious surfaces according to the experts.

    Also, we want walkable communities; that is the buzzword in planning commissions. What is better than walking/riding a bike to a court? All the other sections of the Township have their PUBLIC courts. Rte. 202 and lack of sidewalks make access difficult for kids from the Brookmead Farm/GlenHardie neighborhoods.

    As for a few people being interested in the tennis courts, there were over 220 people who signed a petition to save these PUBLIC courts. The key word here is PUBLIC. Sure there are private clubs, but with the costs associated with dues and membership fees, it is prohibitive for some new families. Join a club is such a Main Line response. Would you like to start a scholarship for some of the kids? There are a lots of children coming into these neighborhoods from the turnover of the houses from older residents.

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    Guy Reply:

    Avid players join clubs, recreational players have plenty of PUBLIC courts available to them. And yes, in life, you will find that many things are cost-prohibitive. Something tells me that the “new” families scooped up properties they may not be able to afford if the expect them to come with amenities like tennis courts.

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  3. UPDATE FROM TOWNSHIP
    I sent an email to the Township (Michelle Kichline, Vince Donohue) and to the School District (Kevin Buraks, Ken Roos) asking for a comment (in applicable) on (1) the grounds for the ZHB to issue a variance to the School District and (2) the consideration of a zoning amendment. I have not received a response from the School District but I received the following email from Vince Donohue, township solicitor:

    Thanks for your email. You have specifically asked for a reply to two questions, so I will address them in order. First, regarding the School District’s intention to seek a variance for relief from the impervious coverage limitations, that implicates a process in which the Board of Supervisors has very little involvement. The application will be considered by the Zoning Hearing Board which will render a decision free from the Board of Supervisors’ involvement (and in consultation with its own solicitor), unless the BOS resolves to oppose the variance. I am not aware of any sentiment among the Supervisors to oppose this application, based on what we know about it at this point. For each application, during the meeting, the Zoning Hearing Board will ask Township staff if they have any opinion on the matter at hand. In most cases, staff does not have an opinion. Only in the most unique of cases, such as a lot with steep slopes, or a corner lot that that has two front yard setbacks, or an old house that is close to the side yard, and is difficult to build on, will the Township staff state a view as to whether relief should be granted.

    As for your second question, it is premature to begin considering a zoning amendment. As is the case with any zoning amendment, the impact is felt throughout the entire zoning district affected. Zoning-district wide relaxation of storm water-related ordinances (like impervious coverage limitations) is something that I believe the Board would be reluctant to pursue, given the Township’s storm water challenges. One of the main purposes of variances is to permit landowners to achieve certain measures of relief – where it makes sense – while at the same time eliminating the need to amend the ordinance which may make sense for one property, but not for every other within the affected zoning district.

    [Reply]

  4. John
    We all know that your association with the idea poisons the well for all of them. By Pattye writing and publishing a response, Vince will likely stop responding. Citizen journalism is wonderful to,educate and discuss, but when it becomes a weapon…indicting redness and playing at the law, we are all dooming the process. the school board was proceeding to expand parking, and public comment engaged the supervisors and the board backed down….is,the BOS likely to he advance this cause when as you tell us regularly, it can all be hung on Kevin Buraks, who has a Republican opponent for his seat…why don’t we ask those who plan to run for school board how they plan to,save the day?

    [Reply]

    Pattye Benson Reply:

    I want to be clear, I sent the township and the school district emails with the following quoted directly from Community Matters post:

    Note: I am sending this article to Kichline, Buraks, Donohue and Roos asking them to comment directly to me on (1) the grounds for the ZHB to issue a variance to the School District and (2) the consideration of a zoning amendment. Their responses will be posted on Community Matters

    I also provided a link to this CM article. I provided full disclosure the township and the district when stating, “Their responses will be posted on Community Matters”. I thank Vince for his response on behalf of the township and hope that there will be a response from the school district. I don’t know exactly what you are saying, “Citizen journalism is wonderful to education and discuss, but when it becomes a weapon…”. I do NOT use responses from people (whether elected officials, township employees, etc.) as weapons and frankly, take issue with the suggestion. I appreciate that Vince took the time to respond to my question — and certainly hope that you are incorrect in your suggestion that he will stop responding. Residents should expect open communication from those elected to serve our community — and in the case of this township response, Vince Donohue responded as township solicitor with Michelle Kichline copied on the communication.

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  5. John
    I agree…I just think the term dopes goes way beyond those who are easily identified. I had a lot more to say on this topic, but it didn’t make the cut. So I wish you all well….and I won’t put Pattye to the test of whether or not to post my thoughts anymore. We non residents are signing off.

    [Reply]

  6. I have found that when writers have well thought out, unbiased true points to make which are backed up by data or real life experiences, there is no reason for them to be mean and condescending. In fact, they don’t want to mock, ridicule, personally attack or name call anyone. If a writer has something meaningful to share, hostility and anger just get in the way.

    I don’t believe people enjoy being mean. I believe they do it because they can’t help it.

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  7. After the attack on Pearl Harbor, it was reported that a Japanese admiral wrote in his diary,

    “I fear all we have done is to awaken a sleeping giant and filled him with a terrrible resolve.”

    The tennis court issue has revealed that School Board Directors and Administrators are afraid of and respond to one thing and one thing only: The sleeping giant known as the taxpaying, voting citizen banding together for a common cause.

    220 citizen signed petition
    over 40 people show up at committee meetings and band together for a common cause
    late night phone calls to board members expressing strong opinions and ideas.
    politically connected citizens hopping on the band wagon

    This is the recipe for getting things done.

    (I am also Shining Light)

    [Reply]

  8. I’m not asking the TESD to do anything.

    I’m stating what it takes to get local officials to respond to citizens.

    Wake the Sleeping Giant.

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  9. I would like to know, if the tennis courts remain, who determines who gets to use these tennis courts, and when?

    Are they available to all T/E residents, any time of day? I would think that, being on school property, there might be concerns about public access to school grounds during school hours. Outside of school hours, how is access to these public assets on school grounds to be marshalled?

    M. A.

    [Reply]

    Pattye Benson Reply:

    In the draft agreement with the Township, the District proposed that the tennis courts would be the exclusive use of the District’s students and teachers when school was in session — evenings, weekends, summer, holidays, the courts could be used by the public. But the agreement was not signed because it was determined that the District would need a variance from the Zoning Hearing Board. Presumably, if the District receives a variance, a new agreement between the Township and the District will be written — contents to be determined.

    [Reply]

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