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Zoning Bulletin <br />February 25, 2014 I Volume 8 I Issue 4 <br />The court also rejected Tri-County's argument that the ordinance's 40- <br />foot height restriction on all structures was an unconstitutional de facto <br />exclusion of landfills. Although Tri-County had argued that a landfill would <br />not be economically feasible with a 40-foot height restriction, the court <br />found that there was extensive, conflicting testimony otherwise. <br />Having found that there was evidence that Tri-County could operate in <br />an economically viable manner while adhering to the zoning ordinance's <br />40-foot height limitation, the court also concluded that the ZHB's denial of <br />Tri-County's dimensional variance request was not in error —as Tri-County <br />had failed to show any hardship. <br />See also: Dechert LLP v. Com., 606 Pa. 334, 998 A.2d 575 (2010) (find- <br />ing statute is not automatically ambiguous where it uses phrase "including <br />but not limited" followed by several enumerated examples). <br />See also: Interstate Outdoor Advertising, L.P. v. Zoning Hearing Bd. of <br />Warrington Tp., 39 A.3d 1019 (Pa. Commw. Ct. 2012), appeal denied, 75 <br />A.3d 1283 (Pa. 2013) (holding that in Pennsylvania, zoning ordinances <br />enjoy a presumption of constitutionality and validity, and that to prove a <br />total or effective exclusion of a permitted use, the challenger must show de <br />jure (on its face) or de facto (in reality) exclusion). <br />See also: Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, <br />554 Pa. 249, 721 A.2d 43 (1998) (providing standard for establishing un- <br />necessary hardship for a dimensional variance). <br />Case Note: <br />In reaching its determination, the court initially concluded that the Township had <br />failed to cross -appeal. Thus, the court did not address whether the trial court had <br />properly determined that Tri-County had not abandoned its prior nonconforming <br />landfill use. <br />Ripeness —Resident brings <br />complaint challenging planning <br />commission decision to grant <br />subdivision approval:. <br />Planning Commission maintains complaint is not <br />ripe for adjudication because development <br />awaits state approval for easement over historic <br />road <br />Citation: Blake v. County ofKaua'i Planning Coin'n, 2013 WL 6686682 <br />(Haw. 2013) <br />2014 Thomson Reuters 9 <br />