In the good old days of Greece settling land disputes was easy. One merely appealed to Zeus, the head god, and a lightning bolt or two was dispatched to solve the problem. Athens is one of the best examples. When Zeus was about his dallying ways one day his brother Neptune decided to put an ocean where Zeus’s wife Athena had planted an olive tree. When Athena complained Zeus got angry and whipped a bolt of lightning down on his brother and banished him to the oceans forever.
Legend holds that this is how the city of Athens came to be and while it endures Zeus and his comrades are largely relegated to high school literature classes meanwhile in Pennsylvania the tradition of lightning bolts to settle disputes about the earth continues.
What occasional “not-in-my-backyarders” the kind that need to ask directions to the township building when they decide they don’t like what’s being built in their neighborhood don’t understand is that a municipal government’s ability to stop development is very limited in Pennsylvania. When a development gets gridlocked it ends up in the hands of the state’s zoning gods: the judges in county and state courts. Judges hate zoning cases. They have better things to do than deal with the site specific, emotionally charged, often technically complex cases that most often will permanently change a community’s landscape. With Harrisburg turning out more aggressive land use policies laced with highly technical ordinances the judges’ tempers appear to be growing short. In two recent cases they sent their judicial lightning bolts with swift fury burning both a township and a developer in the process.
In the case of Vartan versus Susquehanna Township in Dauphin county, “not-in-my-backyard” ran amuck when three of the township’s commissioners ordered the code enforcement department to rescind permits for a concrete plant that had already been approved. On appeal the Court gave the developer $4 million in damages, legal fees and forced the resignation of the 3 elected commissioners responsible for violating the developer’s civil rights.
In Montgomery County in the 7-year battle of Montgomery Crossing versus the Township of Lower Gwynedd the developer got burned with a decision with broad ramifications. In this case a development plan for a so-called big box retail shopping center that turned into the right to build a trailer park ended up before a 3-judge panel in Commonwealth Court. “Let me build what I want or a trailer park is what you’ll get” is about the oldest game in Pennsylvania’s developer handbook. Writing for the panel Judge Bonnie Brigance – Leadbetter seemingly zapped it once and for all. While the developer claimed tiny Lower Gwynedd didn’t have enough retail stores the judges noted two nearby shopping centers in adjacent townships, one a regional mall just a few hundred yards from the land in question. The judges also banished the builders’ other old argument that the size of the store is proportionate to its profits. In this decision just because a small hardware store is profitable does not automatically mean it has the development rights to a large store just because the land is there. The judges seem to have set a precedent for municipal governments to decide the proportionate development by type and size. A power that township officials have wanted for years, especially in the fast growing central and southeastern parts of the state.
It will be years before the consequences of the Vartan and Montgomery Crossing decisions are understood but one thing is clear: the gods are angry. Judges are coming down hard on both sides in the zoning process. Developers or governments that want to play the same tired games with the old cliches and shenanigans are going to get zapped by judicial lightning. Someday maybe they’ll learn to play by the rules but until they do the judges will decide the future of our communities and their decisions will endure long after the current players are gone whether we like them or not.