The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Water’s Edge at Wind Gap, LLC :
Appellant :
:
v. : No. 279 C.D. 2024
:
Zoning Hearing Board of Moore :
Township and Moore Township : Submitted: July 25, 20251
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MATTHEW S. WOLF, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE WOLF FILED: December 31, 2025
Water’s Edge at Wind Gap, LLC (Applicant) appeals from the
Northampton County Common Pleas Court’s (Common Pleas) March 4, 2024 order
affirming the March 17, 2023 decision of the Moore Township (Township) Zoning
Hearing Board (Board, and with the Township, Appellees) that denied Applicant’s
appeal from determinations of the Township’s Zoning Officer (Zoning Officer).
Applicant presents three issues for this Court’s review: (1) whether manmade steep
areas on its property are subject to the steep slope provisions of the Township’s
Zoning Ordinance (Zoning Ordinance); (2) whether the Board erred in requiring
1
The parties presented oral argument in this matter before the above-captioned panel of
Judges on April 8, 2025. Following argument, this Court remanded the matter to the Court of
Common Pleas of Northampton County, retaining jurisdiction, for an evidentiary hearing and
determination as to timeliness. Water’s Edge at Wind Gap, LLC v. Zoning Hr’g Bd. of Moore
Twp., (Pa. Cmwlth., No. 279 C.D 2024, filed May 13, 2025), 2025 WL 1378370 (Water’s Edge
I). After proceedings on remand, return of the record to this Court, and supplemental briefing by
the parties, the merits are ripe for disposition.
offsite improvements, as defined by the Pennsylvania Municipalities Planning Code
(MPC);2 and (3) whether the Board erred in denying Applicant’s request for a
dimensional variance from the Zoning Ordinance. Initially, on the record made on
remand in Water’s Edge I, we determine that Applicant’s appeal to the Board was
timely filed, vesting the Board with jurisdiction. On the merits, we conclude that
the Board correctly applied the Zoning Ordinance’s steep slope provisions, but that
it erred in requiring impermissible offsite improvements and in denying the
requested variance for the reasons it gave. Before we can fully dispose of
Applicant’s variance request, further factfinding by the Board is warranted.
Accordingly, we affirm Common Pleas’ decision in part, reverse in part, and vacate
and remand in part.
I. BACKGROUND
Applicant owns the 51-acre property known as 235 Moorestown Drive
in the Township (Property). Prior owners developed an 18-hole golf course on the
Property about 30 years ago, which remains today. Applicant plans to redevelop the
Property as an industrial development with two warehouses.
Applicant submitted a preliminary land development application. On
August 2, 2021, the Township’s engineering firm, Keystone Consulting Engineers
(Keystone) issued a first technical review letter detailing various deficiencies under
the Zoning Ordinance. Applicant submitted a revised preliminary land development
application on December 8, 2021 (Application). This included an initial site plan
(Site Plan 1).
On January 24, 2022, Keystone issued a second review letter. It
determined, consistently with the first review letter, that Applicant had not identified
2
Act of July 31, 1968, P.L.805, as amended, 53 P.S. §§ 10101-11202.
2
all areas of steep slopes as required under the Zoning Ordinance and ordered revision
to Site Plan 1 to show all steep slopes, whether manmade or preexisting. After
receiving the second review letter, Applicant communicated with the Township’s
solicitor, inquiring whether Keystone’s determinations in the letter constituted
formal action by the Zoning Officer. Reproduced Record (R.R.) at 392a-93a. Upon
being informed they were the Zoning Officer’s determinations, Applicant filed an
appeal to the Board on April 13, 2022. The appeal included Applicant’s substantive
validity challenges to several provisions of the Zoning Ordinance and the
Township’s Subdivision and Land Development Ordinance (SALDO).
While that appeal was pending, Applicant submitted revised and
supplemental materials: an amended site plan on October 17, 2022 (Site Plan 2),
revised zoning compliance plans on November 21, 2022 (Concept Plan) and a
modification of its requested relief on December 26, 2022. See R.R. at 73a-85a
(modifications to relief).
The Board conducted hearings over six days from July 2022 through
February 1, 2023. Applicant presented the testimony of Stephen Walsh, P.E., its
engineer. Walsh described the Property as being surrounded by residential lots and
two roads, Moorestown Drive and Jones Road. He explained that because it was
developed as a golf course, the Property contains many non-contiguous steep areas
that were created when the golf course was developed. These include “bunkers,”
“planting beds,” “[s]and traps, tee boxes, [and other] areas that they have flattened
out and firmed up” to develop the golf course. R.R. at 502a-03a. Those areas would
be “deleted” or filled in to regrade the Property at a consistent slope as shown on
Site Plan 2 so the two warehouses, parking areas, and access roads could be built.
Id. at 503a-04a. He conceded that Site Plan 2 does not depict all areas that would
3
qualify as steep slopes under the Zoning Ordinance (i.e., areas with a grade above
8%) because many of those areas on the Property are manmade and were thus not
depicted on the plan.
Walsh addressed traffic concerns, explaining that the two warehouses
combined would employ nearly 1,000 people and operate 44 loading docks. He
stated his view that despite that traffic, the Township cannot require Applicant to
make improvements to Jones Road because it is not part of the Property and will not
be used to access the Property per the current design, and a previously planned
emergency access via Jones Road had been removed from the design. Walsh also
testified regarding the need for a dimensional variance because, in order to build a
100-foot-wide raised berm along Jones Road as required under the Zoning
Ordinance, Applicant cannot preserve the existing woodlands on the Property at the
rate the Zoning Ordinance requires.
The Township presented the testimony of Kevin Horvath, its engineer,
who is employed by Keystone. He expressed concern for traffic and stated that
Applicant had not provided clear justification for its estimations of those impacts.
He confirmed that Applicant had not identified all steep slope areas as part of the
Application and clarified that the Zoning Ordinance’s steep slope provisions differ
from the separate steep slope provisions of the SALDO. Horvath testified that, in
his view, the Zoning Ordinance’s steep slope provisions can apply to manmade
features as well as preexisting ones.
Finally, the Township presented the testimony of Jason Harhart, the
Zoning Officer. He generally testified that the Application was insufficiently
specific regarding the identities of potential tenants of the warehouse project, the
precise nature of the use, and the traffic, parking, and environmental impacts. The
4
Zoning Officer testified that, like Horvath, he views the Zoning Ordinance’s steep
slope provisions as potentially applying to manmade features.
On February 10, 2023, the Board voted orally to deny the Application.
Its written decision followed on March 17, 2023. The Board described the
modifications Applicant had made to its requested relief via Site Plan 2, including
the contingent withdrawal of its substantive validity challenges regarding dedication
of open space and off-site improvements if the Board were to grant relief on the
other substantive validity challenges and variances. See R.R. at 992a-94a, 1006a-
07a. The Board made the following relevant conclusions of law regarding the
Zoning Ordinance’s steep slope provisions:
82. Neither [Site Plan 2], nor any other plan depicting
slopes . . . submitted by Applicant, identify or provide
information related to the protection rate of steep slopes in
8-15% and 15-25% increments as required by the [Z]oning
[O]rdinance.
....
93. The hills, mounds, berms, traps and other slopes
created for the golf course have been in existence for
approximately thirty (30) years and no evidence has been
presented that they exist today with the assistance of
artificial means. The hills, berms, traps and other slopes
are the natural features of the [Property] as it exists today.
....
95. The Board finds that the Zoning Officer’s application
of [the Zoning Ordinance’s steep slope provisions to the
Property] was not arbitrary and unreasonable.
....
101. The Board further notes that the Applicant did not
request a variance [from steep slope provisions] despite
5
clearly claiming the manmade features create a hardship
that inhibit his ability to comply with the ordinance.
Id. at 1012a-14a (emphasis omitted). Regarding offsite improvements, the Board
concluded:
142. The Board finds that the Zoning Officer’s and
Engineer’s application of the [SALDO] provisions related
to improvements to Jones Road was not arbitrary or
unreasonable.
143. All plans that have been submitted by Applicant as
evidence in this appeal depict the improvements to Jones
Road.
144. Additionally, Site Plan 1 clearly depicts an
emergency access road that Applicant intends to construct
to provide emergency vehicle access to the [Property].
145. Applicant further agreed that tractor trailers may
attempt to access the [Property] via Jones Road beyond
Applicant’s control.
146. The size and scope of the proposed development,
significant increase in traffic and potentially dangerous
configuration of Jones Road reasonably warrant the
improvements to Jones Road and application of the
challenged [SALDO] provisions.
Id. at 1023a. Regarding variance relief, the Board concluded:
147. . . . . Applicant seeks a five percent (5%) variance
from [the Zoning Ordinance’s woodland preservation
requirement of 60%].
....
153. The Board denies Applicant’s request for a variance
for the following reasons:
a. Applicant has not met his [sic] burden of proof to
demonstrate the requisite hardship.
6
b. Applicant has created the necessary 5% variance due
to the size of the proposed warehouse structures.
Applicant has the clear ability to reduce the size or
number of proposed warehouses, which would allow
for the preservation of at least 60% of the woodland
areas as the ordinance requires.
c. The [Property] is large enough to allow for Applicant
to use the [Property] for the permitted warehouse use,
while also allowing for the required preservation rate
of the woodland areas.
d. The proposed development is completely altering the
essential character of the neighborhood. The [Property]
is currently used as a golf course and is primarily
surrounded by large, single-family homes. The size of
the proposed structures, potential for 24-hour
commercial activity and increase in traffic will
dramatically transform the neighborhood from mostly
residential to an intense industrial space.
e. Furthermore, Applicant’s request is not the
minimum variance that will afford relief and represent
the least modification of the ordinance. As stated
above. Applicant maintains full control over the size of
the proposed structures. Applicant can certainly
construct a warehouse or warehouses that would not
require any relief or, at the very least, less than the 5%
preservation rate requested.
Id. at 1023a-26a. The Board made other determinations that are not at issue on
appeal, finding the Application insufficiently specific and upholding the assessment
of a monetary open-space fee for the development. Id. at 1017a-21a.
Applicant appealed to Common Pleas, which affirmed in part and
reversed in part. It reversed the Board’s decision on the specificity of the
Application (where Common Pleas determined that the Application provided
sufficient information under the Zoning Ordinance) and the open space fee (where
it concluded there is no reasonable relationship between the open space fee and the
7
development’s impacts). On all other issues, Common Pleas affirmed the Board.
II. ISSUES
On appeal,3 Applicant raises three issues. First, Applicant argues the
manmade golf course features on the Property cannot be considered steep slopes
under the Zoning Ordinance. In support, Applicant claims the manmade features of
the Property are neither “natural resources” nor increasing erosion, so they do not
meet the Zoning Ordinance’s definition of steep slopes. It also suggests a conflict
between the steep slope provisions of the Zoning Ordinance and the SALDO, which
it argues should ease the Zoning Ordinance’s requirements. In its second issue,
Applicant argues the Board erred in requiring offsite improvements to Jones Road.
Third, Applicant argues the Board erred in denying variance relief because the
Property’s unique features prevent it from satisfying the woodland protection
requirement and the raised-berm buffer requirement simultaneously.
III. DISCUSSION
A. Timeliness of Appeal to Board
We first address whether Applicant’s appeal to the Board was timely,
which determines whether the Board had subject matter jurisdiction to hear this
appeal. Martin v. Zoning Hr’g Bd. of W. Vincent, 230 A.3d 540, 545 (Pa. Cmwlth.
2020). In Water’s Edge I, we explained that the 30-day period for appeal to the
Board under the MPC begins with notice of a determination by a zoning officer.
Water’s Edge I, slip op. at 3-4 (citing Sections 615 and 914.1(b) of the MPC, 53 P.S.
§§ 10615, 10914.1(b)).4 We described the timeliness issue as follows:
3
Where, as here, common pleas does not take additional evidence, our review is limited to
determining whether the Board abused its discretion or erred as a matter of law. Bird
v. Zoning Hr’g Bd. of Mun. of Bethel Park, 320 A.3d 843, 848 n.8 (Pa. Cmwlth. 2024).
4
Section 914.1 of the MPC was added by the Act of December 21, 1988, P.L. 1329.
8
A “determination” is “final action by an officer, body or
agency charged with the administration of any land use
ordinance.” Section 107(b) of the MPC, 53 P.S. §
10107(b). Conversely, a letter from a zoning officer or
other person to the municipality, rather than to the
applicant, and which is merely made to “assist[t] the
recipient in the rendering of any decision,” is a “report”
rather than a determination and is not appealable. In re:
Appeal of Provco Pinegood Sumneytown, LLC, 216 A.3d
512, 518 (Pa. Cmwlth. 2019) (quoting Section 107(b) of
the MPC, defining “report”). “[T]here is no
requirement in the MPC that a determination be in
writing.” N. Codorus Twp. v. N. Codorus Twp. Zoning
Hearing Bd., 873 A.2d 845 (Pa. Cmwlth. 2005). A zoning
officer’s oral telephonic “statement to [the applicant] that
[the ordinance] would apply . . . constitutes a
determination” that starts the appeal period. Id.; accord
Provco Pinegood Sumneytown, 216 A.3d at 518-19.
In this case, the January 24, 2022 second review letter
from Keystone addressed to the Township does not
purport to be a determination of the Zoning Officer. Thus
as a matter of law, the letter itself was not appealable to
the Board. Provco Pinegood Sumneytown, 216 A.3d at
518-19. The subsequent oral communications referenced
in testimony before the Board could conceivably
constitute a determination of the Zoning Officer, but the
present record does not reflect the communications’
timing. Because the parties did not raise the timeliness
issue below, there is not yet evidence or factual findings
about whether or when Applicant received notice of a
determination by the Zoning Officer. The date of that
notice, which is a factual question, controls when the 30-
day appeal period began running and thus whether the
appeal to the Board was timely filed.
Id., slip op. at 3-4 (emphasis in original).
On remand, Common Pleas held an evidentiary hearing to determine
the date of the Zoning Officer’s determination, as we directed. At the hearing, the
parties stipulated to much of the relevant timeline, though some disagreement
9
remained.
Marc B. Kaplin, Esquire, counsel for Applicant, testified that on
January 27, 2022, three days after the January 24, 2022 second review letter, he had
a telephone conversation with the Township’s Solicitor where he requested that the
Zoning Officer produce a formal written determination. Original Record, Item No.
28 (Notes of Testimony of May 28, 2025 Hr’g (N.T.)) at 32. Attorney Kaplin stated
that the Solicitor agreed to supply such a determination but none was produced. Id.
at 33. Attorney Kaplin testified he called the Solicitor on March 10, 2022, and they
discussed that Applicant should attend the upcoming March 28, 2022 meeting of the
Township’s Planning Commission to obtain the Commission’s feedback on the
Application. Id. at 35. The parties stipulated that co-counsel for Applicant sent a
follow-up email to Township officials stating that Applicant would attend the March
28 meeting to determine whether to pursue its intended appeal to the Board. Id. A
draft copy of Applicant’s notice of appeal was attached to the email. Id. At the March
28, 2022 meeting, the Planning Commission advised Appellant that it would not
address “any of the review comments pertaining to the [Z]oning [O]radiance, and all
such questions needed to be presented to the Zoning Hearing Board.” Id. at 37.
Zoning Officer Harhart testified that he did not issue a written
determination on the Application. N.T. at 53-54, 71. He conceded that the approval
process initiated by the Application continued until the March 28, 2022 Planning
Commission meeting, and did not end before that point. Id. at 72. On cross-
examination and questioning by the court, the Zoning Officer could not identify a
point in time when he made a final determination, orally or in writing, on the
Application. Id. at 72-76. He stated there was no “final date . . . because it is an
ongoing land development review.” Id. at 76.
10
Following the hearing, Common Pleas credited Attorney Kaplin’s
testimony regarding his requests for a written decision of the Zoning Officer, which
was never produced. O.R., Item No. 27, Findings of Fact (F.F.) 7-8, 10-12.
Dispositively, Common Pleas found as fact:
19. In light of the fact that the parties voluntarily engaged
in a process of submissions and resubmissions as well as
discussions designed to effectuate an agreement as to the
land development plan up to March 28, 2022, which
encompasses the zoning issues, March 28, 2022 is the date
that the process ended thereby making the Zoning
Officer’s determination final.
Id. F.F. 19. That finding is supported in the record made on remand and the
Township apparently does not dispute it.5 Applicant filed its appeal to the Board on
April 13, 2022, within 30 days of March 28, 2022. We are satisfied that Applicant’s
appeal to the Board was timely filed and turn now to the merits.
B. Steep Slopes
Applicant’s first issue involves the proper interpretation of the Zoning
Ordinance, which is a question of law. Northampton Area Sch. Dist. v. Zoning Hr’g
Bd. of Twp. of Lehigh, 64 A.3d 1152, 1157 (Pa. Cmwlth. 2013). We construe a
zoning ordinance the same way we would a statute, applying the Statutory
Construction Act of 1972.6 Kohl v. New Sewickley Twp. Zoning Hr’g Bd., 108 A.3d
961, 968 (Pa. Cmwlth. 2015). We determine the intent of the enacting body; the plain
language of the ordinance is the best indicator of that intent. Id.; 1 Pa. C.S. § 1921(b).
Thus, “[w]here the words in an ordinance are free from all ambiguity, the letter of
the ordinance may not be disregarded under the pretext of pursuing its spirit.” Adams
Outdoor Advert., LP v. Zoning Hr’g Bd. of Smithfield Twp., 909 A.2d 469, 483 (Pa.
5
See Township’s Supp’l Br. at 7-8.
6
1 Pa. C.S. §§ 1501-1991.
11
Cmwlth. 2006). “Words and phrases shall be construed according to rules of
grammar and according to their common and approved usage[.]” 1 Pa. C.S. §
1903(a).
It is only when the ordinance is unclear or doubtful that we turn to other
considerations under the Statutory Construction Act, such as the goal of the
ordinance, deference to the zoning hearing board’s interpretation, or reading the
zoning ordinance in pari materia with other ordinances. See AUUE, Inc. v. Borough
of Jefferson Hills Zoning Hr’g Bd., 318 A.3d 771, 780-82 (Pa. 2024);
Commonwealth v. Rosario, 294 A.3d 338, 349 (Pa. 2023).
Applicant presents three arguments for why the Board erred in
concluding that the sloped areas of the Property are steep slopes under the Zoning
Ordinance. These arguments implicate Section 200-35(B) of the Zoning Ordinance7
7
Section 200-35(B) provides in relevant part as follows:
B. Natural resources and protection rates
(1) The applicant for a subdivision, land development, site plan and/or building
permit shall be required to identify all natural resources on a lot when submitting
an application for a subdivision, land development and/or building permit. This
inventory shall include the following resources: floodplains, floodplain soils,
wetlands, waters of the United States, waters of the commonwealth, perennial and
intermittent watercourses, riparian and wetland buffers, steep slopes, and
woodlands.
....
(11) Steep slopes.
(a) Steep slopes shall include areas of 3,000 square feet or greater where the
slope exceeds 8%.
(b) Steep slopes with a grade of 8% to 15% shall have a protection rate of 60%.
(Footnote continued on next page…)
12
and associated defined terms.
First, Applicant focuses on the limiting language “natural resources” in
Section 200-35(B). It argues that the manmade slope areas on the Property—which
Walsh testified include berms, bunkers, sand traps, planting boxes, and other golf
course features—are not “natural resources” when that term is properly interpreted.
Applicant asserts that some of the areas are covered with asphalt or turf grass.
Applicant asserts a distinction between “natural resources,” as used in the Zoning
Ordinance, and the “natural features” of the Property today. Applicant’s Reply Br.
at 4 n.3. In support, Applicant invokes the Zoning Ordinance’s definition of “golf
course” as being “improved with tees, greens, fairways, and hazards.” Zoning
Ordinance § 200-8. It essentially argues that because the Property’s features are
improvements, they cannot be “existing natural elements,” so they are not natural
resources and are not subject to the steep slope provisions of the Zoning Ordinance.
Based on that distinction, Applicant disagrees with the Board’s reliance on
dictionary definitions of “natural resources.”
Appellees respond that the Board properly rejected Applicant’s
(c) Steep slopes with a grade of 15% to 25% shall have a protection rate of 75%.
(d) Steep slopes with a grade of greater than 25% shall have a protection rate of
85%.
R.R. at 179a, 182a (emphasis added).
A “natural resource” is “[e]xisting natural elements relating to land, water, air, plant
and animal life, including but not limited to soils, geology, topography, surface and subsurface
waters, wetlands, vegetation, and animal habitats.” Section 200-8 of the Zoning Ordinance
(definitions).
“Steep slopes” are “[a]reas of 3,000 square feet or greater which have a slope which
is greater than 8% and which, because of the slope, are subject to higher rates of stormwater runoff
and, therefore, erosion.” Id.
13
substantive validity challenge to the steep slope provisions. They argue that the term
“natural resources” used in Section 200-35(B) unambiguously does not distinguish
between manmade and preexisting features of a property. In support they emphasize
dictionary definitions of “natural resources” and decisions of this Court that have
interpreted similar zoning ordinances to apply to manmade steep slopes.
We find the Zoning Ordinance unambiguous on this point. Section
200-35(B) makes clear that it applies to steep slopes only insofar as they constitute
“natural resources”—a term the Zoning Ordinance defines as including “[e]xisting
natural elements relating to land.” Nothing about that definition distinguishes
between elements that were built and elements that were not. Nor does it exclude
improvements. The golf course features of the Property have indisputably
“exist[ed]” for more than 30 years. When they began “existing” does not appear to
be relevant to their status as “natural resources.” To the extent Applicant would
have the word “natural” support a distinction, we note that the plain meaning of that
term when used in the phrase “natural resources” routinely includes environmental
features made or altered by humans. See Natural Resource, BLACK’S LAW
DICTIONARY (12th ed. 2024) (defining to include “[e]nvironmental features that
serve a community’s well-being or recreational interests, such as parks”).
Relying on that common and approved usage, we have uniformly held
the following: if a zoning ordinance “does not differentiate between man-made and
natural steep slopes,” then it unambiguously “regulate[s] all steep slopes of any
origin.” Worth v. Solebury Twp. Zoning Hr’g Bd., (Pa. Cmwlth., No. 1983 C.D.
2007, filed September 8, 2008), slip op. at 7, 2008 WL 9401319;8 accord E. York
Sch. Dist. v. Lower Windsor Twp. Zoning Hr’g Bd., (Pa. Cmwlth., No. 62 C.D. 2023,
8
Unreported opinions of this Court filed after January 15, 2008, may be cited for their
persuasive value. Pa.R.A.P. 126(b); 210 Pa. Code § 69.414(a).
14
filed Dec. 5, 2024), slip op. at 13, 2024 WL 4983567, (reversing lower court’s
“purported distinction between ‘natural’ and ‘manmade’ slopes” as being “not an
actual ambiguity” and finding ordinance unambiguous); DiSanto v. Bd. of Comm’rs
of Susquehanna Twp. (Pa. Cmwlth., No. 679 C.D. 2016, filed June 1, 2017), slip op.
at 14, 2017 WL 2376522 (“The text is not ambiguous and . . . it explicitly does not
distinguish between manmade and natural slopes.”).
Imposing a natural/manmade distinction where there is none would
create an impossible line-drawing problem for judges: “[H]ow would we then
determine at what point a slope remains manmade and when in time it is to be
considered to have become a natural part of the Property’s topography?” DiSanto,
slip op. at 14. Human changes to land are “visible today to anyone travelling across
Pennsylvania’s spectacular, rolling, varied terrain[,]” which “bears visible scars, too,
as reminders of the past efforts of man to exploit Pennsylvania’s natural assets.”
Robinson Twp. v. Commonwealth, 83 A.3d 901, 976 (Pa. 2013). Whether a feature
is natural or manmade is, as Judge Morganelli of Common Pleas aptly put it here,
the “sort[] of thorny-bordering-on-philosophical question[]” best avoided by courts
and left to legislation and policymaking. Common Pleas Op. at 17 n.4; see DiSanto,
slip op. at 14. The Township’s governing body obviously knows how to make policy
judgments in its ordinances about whether manmade features should be regulated in
a given context. It used the phrase “areas of natural (i.e., not man-made) steep
slopes” in Section 4.11.11 of the SALDO, but not in the Zoning Ordinance.
(Emphasis added.) We conclude that both the text of Section 200-35(B) and the
Zoning Ordinance’s definition of “natural resources” unambiguously apply to steep
slopes regardless of their origin.
Second, Applicant argues the Property’s slope areas are not “steep
15
slopes” at all. Applicant argues the areas do not meet the second prong of the
definition of “steep slope” under Section 200-8 of the Zoning Ordinance because
they are not “subject to higher rates of stormwater runoff and therefore erosion.” It
argues the Board and Common Pleas improperly disregarded that prong as being a
statement of policy instead of a definitional requirement. Applicant emphasizes
Walsh’s testimony that the slopes on the Property are not subject to higher rates of
erosion than permitted by the Pennsylvania Department of Environmental
Protection and argues the Board capriciously disregarded that testimony. Applicant
suggests that this part of the Zoning Ordinance is ambiguous because it does not
include any measurable standard of runoff that would satisfy that second prong of
the definition. Applicant proposes that we read the provision in its favor due to that
lack of clarity.
In response, Appellees essentially adopt the Zoning Officer’s and
Common Pleas’ view of the definition in Section 200-8: that the second prong of
that definition, regarding runoff and erosion, is a statement of policy and does not
limit the definition’s scope. See R.R. at 739a; Common Pleas Op. at 24-25.
Appellees argue that to qualify as a steep slope, an area need only be subject to
heightened amounts of runoff, and there is no certain amount of runoff or erosion
required. They further point out that the Board was free to reject Walsh’s testimony
that the slopes on the property will not be eroded.
We initially agree with Applicant about how to interpret the definition.
The second phrase, requiring a higher amount of runoff, must have effect beyond
being a statement of policy. Delchester Devs., L.P. v. Zoning Hr’g Bd. of Twp. of
London Grove, 161 A.3d 1081, 1104 (Pa. Cmwlth. 2017) (citing 1 Pa. C.S. § 1921).
But we also agree with Appellees that Applicant, and Walsh, looked beyond the
16
definitional standard. The definition requires only that a slope be subject to the
potential for heightened runoff. It assumes that heightened runoff inherently places
the slope at higher risk of erosion. It does not require a particular amount of erosion
and it does not consider the surface cover of the slope. So to find this part of the
definition satisfied, the Board need only have found that the slopes on the Property
are the kind ordinarily subject to heightened runoff.
Walsh’s testimony regarding the low risk of erosion does not
undermine the Board’s decision, for two reasons. First, Walsh’s testimony on this
issue, read as a whole, focuses on whether the Property in general would experience
“erosion and increased stormwater runoff” because of the slopes. R.R. at 439a; see
id. at 438a-41a. He opined that “the runoff would not exceed rates that would
deteriorate a turf or grass surface covering.” Id. at 502a (emphasis added). But that
is not the definitional standard. The Zoning Ordinance asks only whether the steep
slope areas themselves are subjected to heightened runoff. It does not allow
consideration of the surface covering or other mitigating factors. Nothing about
Walsh’s testimony suggests that the slope areas on the Property are not inherently
subject to greater runoff potential. Indeed, his testimony, by focusing on the need
for turf grass to mitigate erosion, assumes that the slopes are subject to greater runoff
potential. That is all the definition requires. Second, the Board apparently did not
credit that testimony. The Board is free to reject testimony even if uncontradicted,
and “it should remain a rare instance where a reviewing court disturbs an
adjudication based on a capricious disregard of the evidence standard.” Metal Green
Inc. v. City of Phila., 266 A.3d 495, 506, 515 (Pa. 2021) (Opinion Announcing the
Judgement of the Court (OAJC)); id. at 525 & n.28 (Wecht, J., dissenting) (agreeing
and emphasizing “rare”). The Board also considered Horvath’s testimony. He
17
stated his view that being subject to heightened runoff potential is an inherent
characteristic of all steep slopes, as mathematically defined based on slope
percentage. R.R. at 573a-74a. The Zoning Officer gave the same testimony. R.R.
at 739a. That testimony, which the Board credited, suggests that the Property’s steep
slope areas fall within the Zoning Ordinance’s definition, like other steep slopes
would. That supports the Board’s determination here that the disputed areas are
steep slopes, and we will affirm that determination, albeit on different grounds.
In its third argument, Applicant suggests that the steep slope provisions
of the Zoning Ordinance should be construed in pari materia with those of the
SALDO, which distinguishes manmade from natural steep slopes. We are not
persuaded that they should be construed together, so this argument does not alter our
conclusion that the steep slope provisions apply.
“Statutes or parts of statutes are in pari materia when they relate to the
same persons or things or to the same class of persons or things.” 1 Pa.C.S. § 1932(a).
“Statutes in pari materia shall be construed together, if possible, as one statute.” 1
Pa.C.S. § 1932(b). Appellees correctly identify two reasons that we should not read
the ordinances together here. First, “the rule requiring in pari materia construction
of statutes applies in instances of ambiguous statutory language.” Goodwin v.
Goodwin, 280 A.3d 937, 948 n.7 (Pa. 2022); accord Rosario, 294 A.3d at 349. We
find no ambiguity, so we do not look outside the Zoning Ordinance. Second, the
Zoning Ordinance and the SALDO regulate different things: zoning addresses
permissible use, whereas the SALDO addresses subdivision and development. Two
provisions of the Zoning Ordinance bolster this view. Section 200-4(D) says that
provisions of the SALDO “shall not be considered to be in conflict with the
provisions of” the Zoning Ordinance, which shall take precedence. And Section
18
200-65 says that when the Zoning Ordinance is “in conflict with other requirements
of the Ordinances of the [Township], the most restrictive of those imposing the
highest standards shall govern.” The differences between the two ordinances are
intentional and echo their different purposes, and we should not attempt to
harmonize them.
C. Offsite Improvements
Section 503-A(b) of the MPC states:
No municipality shall have the power to require as a
condition for approval of a land development or
subdivision application the construction, dedication or
payment of any offsite improvements or capital
expenditures of any nature whatsoever or impose any
contribution in lieu thereof, exaction fee, or any
connection, tapping or similar fee except as may be
specifically authorized under this act.
53 P.S. § 10503-A(b).9 “Offsite improvements” are “capital improvements which
are not onsite improvements[10] and that serve the needs of more than one
development.” Section 502-A of the MPC, 53 P.S. § 10502-A.11
Applicant argues that improvements the Board is requiring it to make
to Jones Road under various SALDO provisions12 are unlawful offsite
9
Added by the Act of December 19, 1990, P.L. 1343.
10
“Onsite improvements” are “[a]ll improvements constructed on the applicant’s property,
or the improvements constructed on the property abutting the applicant’s property necessary for
the ingress or egress to the applicant’s property, and required to be constructed by the applicant
pursuant to any municipal ordinance, including, but not limited to, the municipal building code,
subdivision and land development ordinance, PRD regulations and zoning ordinance.” 53 P.S. §
10502-A (emphasis added).
11
Added by the Act of December 19, 1990, P.L. 1343.
12
Section 4.06.9 of the SALDO requires that “streets adjacent to a development” must
meet certain prescribed width requirements, and if they do not, “the developer is required to
upgrade the street to meet these requirements by improving the road or paying a contribution to a
(Footnote continued on next page…)
19
improvements. Jones Road is not on the Property but is adjacent to the Property.
Applicant argues that Jones Road is not necessary for ingress or egress to the
Property, emphasizing that no access to the warehouse development will be allowed
via Jones Road, and there will be signage specifically prohibiting trucks and through
traffic from using Jones Road for access. Applicant acknowledges that on its initial
submission and Site Plan 1, it proposed to create an emergency-only access point via
Jones Road, but it removed that access point on its later submissions of Site Plan 2
and the Concept Plan. See Applicant’s Reply Br. at 17. On that basis, Applicant
argues Jones Road is not necessary for ingress or egress, so improvements to it are
impermissible offsite improvements.
Appellees acknowledge that the plans do not depict any authorized
access via Jones Road and no longer depict an emergency entrance there. But they
emphasize Applicant’s concession that some unauthorized access via Jones Road
may still occur, which would be beyond Applicant’s control. Appellees cite the
development’s size and traffic impact generally as a basis to find that the Zoning
Officer’s requirement of improvements to Jones Road is reasonable and not
arbitrary.
We agree with Applicant’s framing of the question here. The condition
requiring improvements to Jones Road is permissible under Sections 503-A(b) and
502-A of the MPC only if those improvements are “onsite improvements,” i.e., only
if they are “necessary for the ingress or egress to the applicant’s property.” Walsh
Township Road Improvement Fund.” Section 4.07.8.a of the SALDO states: “To ensure adequate
sight distances, when street centerlines deflect more than one (1) degree, connection shall be made
by horizontal curves,” and prescribes minimum radii for curves. Section 4.07.9.a of the SALDO
prescribes maximum and minimum grades for streets. Section 4.07.16 of the SALDO requires
street signage to conform with U.S. Postal Service and Pennsylvania Department of Transportation
(PennDOT) standards. Section 4.07.22 of the SALDO requires road striping per PennDOT
standards.
20
testified that Jones Road is not necessary for ingress and egress. R.R. at 448a. His
testimony about the potential emergency access via Jones Road, see id. at 499a, no
longer supports the Board’s determination because Applicant has removed that
planned emergency access from the Concept Plan that is now the basis for its
requested relief, see id. at 73a-85a. Thus, as currently constituted, we conclude that
the Application does not make Jones Road necessary for ingress or egress to the
Property, so improvements to Jones Road are therefore impermissible offsite
improvements. The Board erred in concluding otherwise.
D. Variance Relief
Section 910.2(a) of the MPC sets forth five criteria an applicant must
show before the Board grants a variance, as follows:
(1) 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.
(2) 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 the reasonable
use of the property.
(3) That such unnecessary hardship has not been created
by the [applicant].
(4) 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
21
impair the appropriate use or development of adjacent
property, nor be detrimental to the public welfare.
(5) 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.
53 P.S. § 10910.2(a). Applicant requests a dimensional variance. Although the
above criteria apply to dimensional variances, the Pennsylvania Supreme Court has
relaxed the standard for establishing hardship for dimensional variance purposes, as
we have explained:
Under Hertzberg [v. Zoning Board of Adjustment of the
City of Pittsburgh, 721 A.2d 43 (Pa. 1998)], courts may
consider multiple factors in determining whether the
applicant established unnecessary hardship for a
dimensional variance. These factors include the cost of
the strict compliance with the zoning ordinance, the
economic hardship that will result from denial of a
variance, and the characteristics and conditions of the
surrounding neighborhood.
Although Hertzberg eased the requirements, it did not
remove them. An applicant must still present evidence as
to each of the conditions listed in the zoning ordinance,
including unnecessary hardship. Where no hardship is
shown, or where the asserted hardship amounts to a
landowner’s desire to increase profitability or maximize
development potential, the unnecessary hardship criterion
required to obtain a variance is not satisfied even under the
relaxed standard set forth in Hertzberg.
Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hr’g Bd., 83 A.3d 488, 520 (Pa.
Cmwlth. 2014) (internal citations omitted).
Applicant requests the variance because of an asserted conflict between
two Zoning Ordinance provisions. Section 200-35.B(12)(d) of the Zoning
22
Ordinance requires that woodlands13 shall have a protection rate of 60% and a
permitted clearance rate of no more than 40%. R.R. at 182a. Section 200-22.G-
14.(1)(c)-(g) requires construction of a 100-foot-wide raised berm buffer yard in the
front yard of any warehouse “along the entire length of the property line,”
“measured from the building lot line[14] of the proposed warehouse.” R.R. at 306a-
07a.
Applicant argues these two provisions irreconcilably conflict when
applied to the Property. It explains that the berm must be located along the frontage
of Jones Road, the Property’s front yard per the Zoning Ordinance, which is also
where most of the relevant woodland areas on the Property (i.e. those subject to the
protection rate of Section 200-35.B(12)(d)) happen to be located. Thus, it argues,
constructing the 100-foot-wide raised berm buffer yard in strict compliance with the
Zoning Ordinance would force Applicant to exceed the permissible woodland
disturbance rates.
To ameliorate that conflict, Applicant sought a 5% downward variance
from the woodland preservation rate (i.e., to preserve 55% of the woodland, rather
than 60%).15 It claims the Board erred in denying that variance because Applicant
successfully showed the variance criteria are met. Specifically, Applicant claims
that the location of most of the woodland along the Property’s Jones Road frontage
13
“Woodlands” are “areas of one acre or greater which contain an average of one or more
trees measuring six inches in caliper or greater, per 5,000 square feet.” Section 200-35.B(12)(b)
of the Zoning Ordinance. R.R. at 182a.
14
A “front lot line” is “[t]he line separating the lot from an existing street right-of way.”
Section 200-8 of the Zoning Ordinance. Section 200-29.L(l) of the Zoning Ordinance similarly
requires that “ [t]he buffer yard shall be measured from the property line or street right of way.”
R.R. at 315a.
15
The percentage amount of the variance requested has shifted over time, but the parties
now appear to agree that the present request is for a 5% variance. See R.R. at 772a, 778a-79a
(20% variance); Applicant’s Br. at 19-20; Board’s Br. at 35; Township’s Br. at 5, 37.
23
is unique to the Property and presents a hardship, and that Applicant did not create
that hardship because it did not choose the woodlands’ location. Applicant disputes
the Board’s conclusion that the variance could be reduced or eliminated if Applicant
were to design a smaller warehouse for relatively less profit. Applicant points out
that even if the warehouse were reduced to a tiny fraction of its current size, the 100-
foot berm could not shrink with it—the berm would still need to be built in the same
location (along the Jones Road frontage) because, per the Ordinance, it must be
measured from the street or property line, not from the building. So it would still be
impossible to satisfy the woodland protection and berm provisions together,
regardless of the size of the warehouse. For the same reason, Applicant argues the
5% deviation is the minimum variance that would afford relief, because no other
changes to the project’s design can allow both provisions to be met.
Appellees first dispute that the provisions conflict, and thus they
dispute any hardship. They cite the Zoning Officer’s interpretation of the Zoning
Ordinance that would allow the 100-foot berm to “move” along with the size of the
building, rather than necessarily being measured from Jones Road. See R.R. at 739a-
40a. The Zoning Officer based that interpretation on the definition of “front yard,”
which is the entire area between the building and the front lot line. On that view, if
Applicant proposed a smaller warehouse, the berm could be built “behind” the
existing woodlands, which would still be within the front yard, but not adjacent to
Jones Road, where the woodlands principally are. That move would preserve
enough woodlands and no variance would be needed. Appellees thus view the
requested variance as being motivated by profit maximization, not actual hardship.
Appellees also argue Applicant has essentially created the hardship because it was
aware of the woodlands’ location when it purchased the Property. Finally, they
24
emphasize the comments from members of the public at the Board hearings
regarding the fourth variance criterion (character of the neighborhood / public
welfare).
We agree with the Applicant that these two Zoning Ordinance
provisions cannot both be met on this particular Property. Appellees attempt to
explain away the hardship by interpreting the Zoning Ordinance to allow the 100-
foot berm to be constructed essentially anywhere between Jones Road and the
proposed warehouse. But that is not the appropriate interpretation of the Zoning
Ordinance. The Ordinance requires the 100-foot berm to be “measured from the
building lot line,” not from the structure. R.R. at 306a-07a. Consistent with that,
Section 200-29.L(l) of the Zoning Ordinance requires buffer yards to be “measured
from the property line or street right of way.” Id. at 315a. The Zoning Officer’s
interpretation, on which Appellees rely, ignores those clear provisions. Under the
plain language of the Zoning Ordinance, Applicant cannot strictly comply with both
the woodland provision and the berm provision.
Further, once one sets aside the Board’s erroneous interpretation, the
bulk of the variance criteria appear satisfied. The reason Applicant cannot comply
with both provisions is that the Property itself is geographically distinctive—its
existing woodlands are principally located along Jones Road, where the berm must
go. Applicant introduced Walsh’s competent testimony about that. See R.R. at
396a-400a. And Applicant did not place the woodlands where they are, so it did not
create the hardship. Finally, the requested variance is the minimum necessary to
afford relief. Walsh testified about his extensive efforts to reconfigure the plans to
decrease the disturbance to the woodlands, so Applicant could request the least
amount of relief. (R.R. 347a; R.R. 349a; R.R. 401 a; R.R. 770a- 775a). He ended
25
up with a deviation of less than 10% from the Ordinance’s 60% woodland
preservation standard. Appellees proffer no reason on appeal why that small
deviation could be even smaller, taking for granted the proper interpretation of the
Zoning Ordinance. Although the Board did not make any express credibility
determinations as to the variance criteria, it did set forth its reasoning for the
hardship, self-created hardship, and minimum variance criteria, including its
interpretation of the Ordinance’s berm provision. We conclude that that reasoning
was erroneous, and that the Board could not reasonably have denied the variance
request based on those criteria “in light of the manifest sufficiency of [the] evidence”
regarding them. Metal Green, 266 A.3d at 525 (Wecht, J., dissenting).
Regarding one variance element, however—character of the
neighborhood / public welfare—the Board was all but silent. It stated in conclusory
fashion that “the proposed development is completely altering the essential character
of the neighborhood.” R.R. at 1025a (emphasis added). That conclusion does not
address whether the variance itself, not the development as a whole, alters the
character of the neighborhood. Nor does that conclusion appear supported by
substantial evidence. The concerns the Board repeated in its conclusion here—
regarding traffic, the size of the structure, and commercial use—are not obviously
related to the woodland variance specifically. Walsh testified that the small variance
would not harm the public welfare because the buffering and screening purposes of
the Ordinance provisions would still be served. R.R. at 401a-02a. The Board did
not address that testimony. It did not make credibility determinations or specific
factual findings on the character of the neighborhood / public welfare requirement.
The Board denied the variance on the other criteria discussed above, but that
determination was in error. Those other elements will support grant of a variance,
26
and the question remains whether this last element should preclude a variance.
Accordingly, we must remand, retaining jurisdiction, for the Board to adequately
explain its determination on the criterion in subsection 910.2(a)(4) of the MPC
specifically. It should make necessary credibility determinations and factual
findings, decide whether it would deny the variance based on the character of the
neighborhood / public welfare criterion alone, and then “set forth an adequate
decisional foundation for” that decision so that we can review it. Metal Green, 266
A.3d at 517 (OAJC); see also id. at 517 n.18 (explaining preference for remand over
reversal). But see id. at 527 & n. 39 (Wecht, J., dissenting) (preferring simple
reversal). On remand, the Board should act on the present record without taking
additional evidence.
IV. CONCLUSION
For the foregoing reasons, we conclude that the Board did not err in
interpreting and applying the steep slope provisions of the Zoning Ordinance to the
Property, so we will affirm Common Pleas’ decision on that issue. But we conclude
that the Board erred in requiring improvements to Jones Road, so we will reverse on
that issue. We also conclude the Board erred in determining Applicant failed to meet
the hardship and minimum variance criteria. However, the Board must still explain
its determination regarding the character of the neighborhood / public welfare
criterion before variance relief can be granted. Accordingly, we will vacate
Common Pleas’ decision as to the variance and remand with instructions for the
Board to explain its decision on the last remaining variance factor, so that we may
fully review the variance determination. See, e.g., Colton Real Est. Corp. v. W.
Conshohocken Zoning Hr’g Bd., 546 A.2d 1315, 1319 (Pa. Cmwlth. 1988)
27
(remanding and retaining jurisdiction for further factfinding by the zoning hearing
board).
_____________________________________
MATTHEW S. WOLF, Judge
Senior Judge Leadbetter dissents.
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Water’s Edge at Wind Gap, LLC :
Appellant :
:
v. : No. 279 C.D. 2024
:
Zoning Hearing Board of Moore :
Township and Moore Township :
ORDER
AND NOW, this 31st day of December , 2025, the March 4, 2024 order
of the Court of Common Pleas of Northampton County (Common Pleas) is
REVERSED in part and VACATED in part consistent with the accompanying
Opinion. In all other respects, Common Pleas’ order is AFFIRMED.
Further, this matter is REMANDED to Common Pleas with direction
to remand to the Zoning Hearing Board of Moore Township (Board) for the Board
to make necessary credibility determinations and factual findings, and to set forth an
adequate decisional foundation for its decision, as specified in the accompanying
opinion. All actions on remand shall be completed and the record shall be returned
to this Court within 90 days after the date of this Order.
Jurisdiction retained.
_____________________________________
MATTHEW S. WOLF, Judge