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:
- 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.
- 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.
- That such unnecessary hardship has not been created by the appellant.
- 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.
- 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.
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!
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.