Zoning dispute may hinge on definition of ‘or’ in zoning ordinance
By Mike McGann, Editor, UnionvilleTimes.com
EAST MARLBOROUGH — Anyone expecting a speedy end to the dispute between the township and the Unionville-Chadds Ford School District over the height of the new Unionville High School auditorium may be disappointed after both sides agreed to postpone a hearing on the matter until July 7.
At Tuesday night’s township Zoning Hearing Board hearing, attorneys for both sides in the dispute agreed that there were witnesses that were unavailable to attend and that the school district’s motion to have the zoning complaint against it dropped would need to be delayed.
The school district did make its appeal public, Tuesday morning, and its argument seems to center around the language for the township’s zoning ordinance. The township will likely have a formal statement on the issue within the next couple of days, officials said.
The school district is arguing that the township’s Educational, Scientific and Institutional (ESI) District — which covers the high school grounds — states that buildings can be either 35 feet tall or three stories and quotes the ordinance:
“No building or Structure, except a radio or television tower or facility authorized by the Board of Supervisors as a Conditional Use, shall exceed three (3) stories or thirty-five (35) in height.”
The district’s appeal appears to interpret the “or” to mean “either” as opposed to “neither.”
The school district also argues that had it been the intention of the township to limit buildings in the ESI District, it would have used language akin to that used elsewhere in the township’s zoning ordinance, citing the Planned Residential Development District (PRD):
“No structure shall exceed thirty-five (35) feet in height, as measured from the mean finished grade, nor contain more than three stories.”
While strict interpretation of the grammar used in the ordinance will likely be part of the data considered should this dispute end up in the courts, the original intent of the ordinance will also likely be considered, with the township arguing that any building of more than three stories or taller than 35-feet violates the zoning, while the district argues that more specific language would have been used, as was used in the PRD zone, if that had been the original intent.
Also, at the center of the appeal is the timing, the district argues. According to the appeal, a public hearing was held on Oct. 13, 2008, detailing the plans, including the then-proposed building’s elevations. The district says it started to have various meetings with township officials, including the Planning Commission, the Township Board of Supervisors, the township’s Zoning Hearing Board. The district argues that various and multiple township officials were aware of the planned height of the auditorium.
“It is beyond cavil that the Township was well aware, early on, what the Project would look like and, particularly, of the height of the Auditorium,” the appeal said.
Furthermore, based on those discussions, the appeal said, the district did file for a number of variances, which were granted by the Zoning Hearing Board in February, 2009.
“At no time during the months of meetings and discussion did the township ever voice concern about the height of the Auditorium,” the appeal said.
The township did issue a building permit for the auditorium on June 28, 2010, with construction beginning shortly thereafter. By August, 2010, the steel frame of the building — already approaching its final height — was clearly visible.
However, the township issued an enforcement notice on March 11 of this year, noting that the auditorium violated the township’s building height limits.