Agenda - Planning Commission - 07/06/2017

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June 10, 2017 I Volume 11 I Issue 11 Zoning Bulletin The Background/Facts: Golf Enterprises, Inc. ("GEI") owned 100 acres of land (the "Property") in Newberry Township (the "Township"). On the Property was a public golf course with a clubhouse and restaurant. Prior to 2006, the Property was zoned Commercial Recreation ("C-3"). A C-3 district allowed for recreational uses such as parks and forestry, as well as conditional uses such as commercial recreational facilities and golf courses. In 2006, the Township rezoned the Property to Open Space ("OS"). In addition to the Property, the only other parcel zoned OS was a 10-acre parcel to the west of the Property that was not owned by GEI. The OS zoning designation allowed for by -right uses such as agriculture, open space, as well as conditional uses including golf courses. The properties surrounding the new OS District were zoned Residential Growth ("RG"). An RG designation allowed for by -right uses such as forestry and various single-family and two-family dwellings, parks and municipal uses, as well as uses by special exception including multi -family dwellings and schools. In 2012, GEI filed an application for a curative amendment, along with a proposed amendment to the Township zoning ordinance and a "sketch plan" proposing 336 residential units on the Property. Pursuant to Pennsylvania's Municipalities Planning Code, "[a] land- owner who desires to challenge on substantive grounds the validity of a zoning ordinance or map or any provision thereof, which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment" along with site -specific plans for the property. (53 P.S. § 10609.1(a); Section 916.1(c)(2) of the MPC, added by Act of Dec. 21, 1988, P.L. 1329, as amended, 53 P.S. § 10916.1(c)(2).) If the governing body determines that the substantive validity challenge has merit, the governing body then considers the site=specific plans submitted by the landowner and considers "the impact of the proposed amendment on the natural resources and natural features of the municipality, other land uses within the municipality and the public resources of the municipality, including roads and sewer facilities." (53 P.S. §§ 10609.1(c), 10916.1(c)(5).) "The governing body 'may accept a landowner's curative amendment, with or without revision, or may adopt an alternative amend- ment which will cure the challenged defects.' " (53 P.S. § 10609.1(c).) Here, GEI argued that the 2006 rezoning of the Property in the OS district created "an island of preserved open space" and constituted invalid spot zoning. "Spot zoning is the `singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment.' " GEI pointed to the RG zoning of the surrounding properties, and contended that the Township had failed to justify why it had treated the Property differently than the land surrounding it. GEI argued that spot zoning occurred here because the physical characteristics of the Property, which was zoned OS, were indistinguishable from the surrounding properties, which were zoned RG. GEI contended that, here, the Township forced GEI to bear the burden of the community's desire to preserve a tract of open space for the surround- ing developed land. 6 © 2017 Thomson Reuters