The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Caln-Nether Company, LP, :
Appellant :
:
v. : No. 1077 C.D. 2020
: Argued: November 15, 2021
Zoning Hearing Board of Thornbury :
Township and Thornbury Township :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY ELLEN CEISLER FILED: December 8, 2021
Caln-Nether Company, LP (Caln-Nether) appeals from an order of the Court
of Common Pleas of Chester County (Common Pleas), dated September 24, 2020,
denying Caln-Nether’s appeal from a decision of the Zoning Hearing Board of
Thornbury Township (ZHB).1 Relevant to this appeal, the ZHB denied
Caln-Nether’s application for a special exception (Application) and Caln-Nether’s
substantive validity challenge to Section 155-13 of the Thornbury Township Zoning
Ordinance2 in effect at the time the application was filed (Current Zoning
Ordinance). For the reasons discussed below, we affirm.
Caln-Nether owns two contiguous vacant lots (collectively, Property) located
in the “A” Agricultural and Residential District (A District) of the Township in
Chester County, Pennsylvania. ZHB Findings of Fact (F.F.) Nos. 3-4, 6, 11; ZHB
1
Common Pleas also denied a cross-appeal filed by Thornbury Township (Township) from
the ZHB’s decision. Common Pleas’ denial of the cross-appeal is not at issue before this Court.
2
Former Thornbury Township Zoning Ordinance, Chester County, Pa., as amended
(1994).
Decision at 24. The first lot comprising the Property, identified as UPI No. 66-3D-41
and referred to as “Lot 1,” measures approximately 2.390 gross acres and was
created by a subdivision plan in 1955. ZHB F.F. Nos. 5, 12. The second lot,
identified as UPI No. 66-3D-39 and referred to as “Lot 2,” measures approximately
3.507 gross acres and was created under a different subdivision plan in 1958. ZHB
F.F. Nos. 5, 13. Caln-Nether purchased the Property on July 27, 2004. ZHB F.F. No.
10.
On March 21, 2019, Caln-Nether submitted the above-mentioned Application
to the ZHB, seeking a special exception to permit the construction of a church or
similar place of worship on the Property pursuant to Section 155-10.D(2) of the
Current Zoning Ordinance.3 Caln-Nether also presented a substantive validity
challenge to Section 155-13 of the Current Zoning Ordinance, which sets forth lot
requirements for “large lots” and “small lots” located in the A District. Current
Zoning Ordinance § 155-13. The ZHB held hearings on the Application on May 15,
2019; June 25, 2019; July 24, 2019; and August 27, 2019.
On November 11, 2019, the ZHB issued its decision denying the Application
and Caln-Nether’s substantive validity challenge to Section 155-13 of the Current
Zoning Ordinance. Observing that Section 155-69 of the Current Zoning Ordinance
3
Section 155-10.D.(2) of the Current Zoning Ordinance permits a “[c]hurch or similar
place of worship, including [a] rectory or parish house” as a use in the A District “when authorized
by the [ZHB] as a special exception.” Current Zoning Ordinance § 155-10.D.(2). Caln-Nether was
seeking special exception approval for purposes of marketing the Property for a church or similar
place of worship to potential tenants or buyers, as Caln-Nether preferred to own the Property and
lease it to a tenant. ZHB F.F. Nos. 17-18. Caln-Nether, however, did not have a proposed tenant
or buyer at the time it submitted the Application. ZHB F.F. No. 15. It is also worth noting that, in
addition to the instant Application, Caln-Nether separately filed two additional applications
seeking special exception approval in relation to the Property: one application for a club/lodge use
and one application for a school/other educational institution use. ZHB Decision at 1 n.1. Those
applications are not at issue in this appeal.
2
governed its review of special exception applications, the ZHB concluded that
Caln-Nether failed to satisfy Section 155-69.A, requiring the ZHB to “[g]ive full
consideration to the size, scope, extent and character of the exception . . . desired
and assure itself that such request is consistent with the spirit, purpose and intent of
[Part 1 of the Current Zoning Ordinance (outlining general provisions)].” See ZHB
Decision at 19-24; Current Zoning Ordinance § 155-69.A. In so doing, the ZHB
observed that Caln-Nether specifically sought to construct a 64,000-square-foot
building with a height not greater than 35 feet, along with 236 parking spaces on the
Property. ZHB F.F. No. 14; ZHB Decision at 20. The ZHB further observed that it
was uncontested that the Property was located in the A District and that properties
located in that district were subject to the zoning regulations set forth in Article III,
Sections 155-10 through 155-15 of the Current Zoning Ordinance. ZHB Decision at
20; see Current Zoning Ordinance §§ 155-10-155-15.. Pertinent herein, Section 155-
11 of the Zoning Ordinance provides:
§ 155-11. Categories of lots in A Districts.
There shall be four categories of lots in A Districts, as
follows:
A. A lot which was, or is hereafter, created under a
subdivision plan approved when the minimum area
required hereunder was or is not less than 80,000
square feet shall be known as a “large lot.”
B. A lot which was created under a subdivision plan
approved when the minimum area required
hereunder was approximately 40,000 square feet
shall be known as a “small lot.”
C. Except for cluster lots, a lot which, whether created
by subdivision plan or otherwise, is less than 40,000
square feet shall be known as a “nonconforming
lot.”
3
D. A lot less than 40,000 square feet created pursuant
to Article XVII (Cluster Residential Development
Option), shall be known as a “cluster lot.”
Current Zoning Ordinance § 155-11 (amendment history omitted). Additionally,
Section 155-13 of the Current Zoning Ordinance provides:
§ 155-13. Lot requirements.
The minimum area, open space, clearance and road
frontage requirements of the large and small lots described
in § 155-11 are as follows:
A. Large Lot.
(1) The area, exclusive of all easements, shall be at
least 80,000 square feet, of which the buildings
shall occupy not more than 15%. Impervious
surface coverage shall not exceed 20% of the lot
area.
(2) There shall be a frontage of at least 250 feet,
except in the case of a cul-de-sac, where a lot
fronting solely or partially on the turnaround
portion shall have a frontage of at least 125 feet.
(3) There shall be a front yard of at least 100 feet in
depth.
(4) There shall be two side yards, each at least 50
feet wide.
(5) There shall be a rear yard of at least 75 feet in
depth, no more than 15% of the area of which
may be occupied by accessory buildings.
(6) Every lot shall have a width of not less than 250
feet at the building setback line.
B. Small lot.
(1) The area, exclusive of all easements, shall be at
least 40,000 square feet, of which the buildings
shall occupy not more than 15%. Impervious
surface coverage shall not exceed 20% of the lot
area.
(2) There shall be a frontage of at least 200 feet,
except in the case of a cul-de-sac, where a lot
4
fronting solely or partially on the turnaround
portion shall have a frontage of at least 125 feet.
(3) There shall be a front yard of at least 100 feet in
depth.
(4) There shall be two side yards, each at least 30
feet wide.
(5) There shall be a rear yard of at least 50 feet in
depth, no more than 15% of the area of which
may be occupied by accessory buildings.
(6) Every lot shall have a width of not less than 200
feet at the building setback line.
Id. § 155-13 (amendment history omitted).
The ZHB first determined that the Property fell under the “small lot” category
set forth in Section 155-11(B.) of the Current Zoning Ordinance. The ZHB observed
that Lots 1 and 2 were created in 1955 and 1958, respectively, at which time a prior
version of the Township’s zoning ordinance—the Zoning Ordinance of 1950—was
in effect.4 ZHB Decision at 21. The ZHB explained that, while the Zoning Ordinance
of 1950 did not specifically state a “minimum lot area” for lots in the A District, it
did provide the following minimum dimensional requirements, setbacks, and depths
that all lots located in that district were required to have: (1) a front yard with a
minimum depth of 100 feet, (2) 2 side yards with a minimum width of 30 feet, (3) a
rear yard with a minimum depth of 75 feet, and (4) a minimum lot frontage of 200
feet. ZHB Decision at 21-22; Reproduced Record (R.R.) at 119a. Using these
minimum requirements, and assuming a “zero[-]square-foot building envelope,” the
4
The Zoning Ordinance of 1950 was the first zoning ordinance adopted in the Township,
and it likewise identified the Property as being located in the A District of the Township. ZHB
F.F. No. 22.b. Former Thornbury Township Zoning Ordinance, Chester County, Pa., as amended
(1950).
5
ZHB reasoned that the minimum lot area for lots in the A District under the Zoning
Ordinance of 1950 would be 35,000 square feet.5 ZHB Decision at 21-22.
Observing that Section 155-11.B. of the Current Zoning Ordinance deemed
“lots which were created under a subdivision plan approved when the minimum area
required was approximately 40,000 square feet as ‘small lots,’” and in light of its
conclusion that the minimum lot area for lots in the A District under the Zoning
Ordinance of 1950 would be 35,000 square feet (as calculated by the ZHB), the ZHB
concluded that the Zoning Ordinance of 1950 “did, in effect, set forth a minimum
lot area for lots in the ‘A’ District that was ‘approximately 40,000 square feet.’”
ZHB Decision at 22 (emphasis in original). Thus, according to the ZHB, Lots 1 and
2 were “small lots” pursuant to Section 155-11.B. of the Current Zoning Ordinance.6
Id.
The ZHB continued by reasoning that, as two “small lots,” the Property was
subject to the provisions of Section 155-13.B.(1) of the Current Zoning Ordinance,
which limited building coverage to a maximum of 15% of the lot area and
impervious surface coverage to a maximum of 20% of the lot area. The ZHB further
noted that, while Caln-Nether “was vague as to whether it intended to merge the two
‘small lots’ into one new lot” of 5.897 acres, even if Caln-Nether did merge the lots,
that new lot would be deemed a “large lot” under Section 155-11.A. of the Current
Zoning Ordinance and would be subject to the same maximum building coverage
and impervious surface coverage limits of 15% and 20%, respectively. ZHB
5
By way of further explanation, the ZHB added the 100-foot front yard requirement to the
75-foot rear yard requirement to obtain a total yard depth of 175 feet. The ZHB then multiplied
the 175-foot-yard depth by the 200-foot frontage requirement to yield a total of 35,000 square feet.
6
The ZHB further supported its conclusion by noting that it was consistent with the
Township’s Zoning Map, which designated Lots 1 and 2 as “small lots.” ZHB Decision at 22-23.
6
Decision at 23. Caln-Nether’s proposed plan, however, provided a building coverage
of 24.91% and an impervious surface coverage of 64.77%. Id. The ZHB observed
that “[t]hese coverages are inconsistent with the ‘A’ District area and bulk
regulations for either a ‘small lot’ or a new ‘large lot’ and far exceed the permitted
development of the Property under the Current Zoning Ordinance.” Id. As such, the
ZHB concluded that Caln-Nether failed to satisfy the requirement of
Section 155-69.A. of the Zoning Ordinance, “as the size, scope, extent and character
of the proposed church or other similar place of worship exceeds that which is
permitted by the Current Zoning Ordinance.”7 Id. Because the ZHB determined that
Caln-Nether failed to demonstrate compliance with the Current Zoning Ordinance,
the ZHB denied the Application.
The ZHB also rejected Caln-Nether’s substantive validity challenge to
Section 155-13 of the Current Zoning Ordinance. As noted by the ZHB, Caln-Nether
argued that: (1) Section 155-13’s “small lot” area and bulk requirements were unduly
restrictive such that it was not feasible to construct a compliant church building on
the Property; (2) there were “no parking standards governing the church use” and
“no parking standards whatsoever” in the Current Zoning Ordinance, rendering the
Current Zoning Ordinance unconstitutionally vague and turning any attempt by the
Township to “make up its own standards” into an unreasonable limit on religious
activities and structures; and (3) the “unduly restrictive” area and bulk regulations
and lack of parking standards were in violation of the Religious Land Use and
7
The ZHB also concluded that Caln-Nether failed to satisfy certain special exception
standards in Section 155-69 of the Current Zoning Ordinance on the basis that Caln-Nether’s use
of the Property, as proposed, would have a negative effect on traffic congestion and result in a
degradation of the level of service at the intersection where the Property was located. ZHB
Decision at 23-24.
7
Institutionalized Persons Act of 2000 (RLUIPA),8 as they “unreasonably limit
religious assemblies, institutions, or structures.” ZHB Decision at 27.
The ZHB first reasoned that, while Caln-Nether argued that Section 155-13
of the Current Zoning Ordinance was vague, ambiguous, arbitrary, and impossible
to comply with as to the proposed special exception use, both Caln-Nether’s and the
Township’s civil engineering experts testified that it was possible to construct a
church or other similar place of worship in compliance with Section 155-13’s
regulations. ZHB Decision at 28. Specifically crediting the testimony of the
Township’s civil engineering experts indicating that it was possible to construct a
church on the Property in compliance with the area and bulk regulations of the A
District, the ZHB also credited the testimony of the Township’s land planning expert
insofar as he stated that the Property was appropriate for a church or similar place of
worship, but that Caln-Nether’s 64,000-square-foot building was not appropriate for
the Property. Id. The ZHB noted that even Caln-Nether’s counsel conceded that his
own engineer testified that it would be feasible to construct an approximately
13,000-square-foot building for a church or other similar place of worship use, and
reasoned that the Township was not required to permit, by zoning, the largest
possible church or place of worship. Id. The ZHB added that Caln-Nether failed to
introduce sufficient evidence that the regulations in Section 155-13 were arbitrary,
instead concluding that they were intended to address legitimate health, safety, and
welfare concerns of the Township. Id. at 29. The ZHB concluded that even the
regulations applicable to a “small lot” would permit the construction of at least a
5,000-square-foot building to house a church or other similar place of worship. Id.
Thus, according to the ZHB, Section 155-13 was not vague, ambiguous, or arbitrary,
8
42 U.S.C. §§ 2000cc-2000cc-5.
8
and it did not make it impossible to construct a church or other similar place of
worship in compliance with the Current Zoning Ordinance.
The ZHB also rejected Caln-Nether’s argument that Section 155-13 of the
Current Zoning Ordinance was substantively invalid because the Current Zoning
Ordinance did not include parking standards governing a church use. The ZHB
reasoned that there were parking regulations governing uses in the A and B Districts
set forth in Section 155-87 of the Current Zoning Ordinance.9 ZHB Decision at 29.
The ZHB observed that Caln-Nether did not challenge the substantive validity of
Section 155-87, nor did Caln-Nether introduce sufficient evidence that the parking
regulations in that provision were “so unduly restrictive that they ma[de] it
impossible for [Caln-Nether] to construct a church of some size with associated
parking on the Property.” Id. at 30. The ZHB added that there was no requirement
in the Pennsylvania Municipalities Planning Code (MPC)10 that a zoning ordinance
must include “parking standards governing a church use” and that, while Caln-
Nether argued that the Township could not “just ‘make up its own standards’ in its
own discretion,” Caln-Nether “failed to introduce evidence that the Township had
9
Section 155-87 of the Current Zoning Ordinance provides, in relevant part:
§ 155-87. Parking areas.
A. For every house in A Districts hereafter erected there
shall be provided at least one parking area, either enclosed
or open, situated completely off the right-of-way of the street
or road upon which said premises abuts, which parking area
shall be at least 400 square feet in area and with an outlet to
a street or road abutting the property.
B. In B Districts there shall be at least 200 square feet of
parking space for every 200 square feet of commercial floor
area of any store or commercial building hereafter erected.
Current Zoning Ordinance § 155-87.
10
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
9
endeavored to ‘make up its own standards’ for parking requirements for a church
use.” Id. at 29.
Finally, the ZHB addressed Caln-Nether’s contention that applying the
building coverage and impervious surface coverage limitations from Section 155-13
of the Current Zoning Ordinance to a church use imposes a substantial burden on
and unreasonably limits religious activity in violation of the RLUIPA. The ZHB
reasoned that, while Caln-Nether relied upon Islamic Society of Basking Ridge v.
Township of Bernards, 226 F. Supp. 3d 320 (D.N.J. 2016), in support of its position,
that case was distinguishable. The ZHB specifically noted that, in Islamic Society of
Basking Ridge, the township involved was found to have applied a parking ordinance
that was facially valid with sufficient intent to discriminate against a special
exception applicant on the basis of religion. The ZHB reasoned that, here, the
Current Zoning Ordinance permitted churches or similar places of worship without
distinction between different faiths, all permitted uses in the A District were subject
to the regulations in Section 155-13 and Section 155-87 of the Current Zoning
Ordinance, and the “church or similar place of worship” use was not subject to any
additional or different regulations from other permitted uses in the A District. ZHB
Decision at 30-31. Further, Caln-Nether failed to introduce evidence that the
Township was, in fact, “making up its own standards” and applying them to the
proposed church use. Id. at 31. The ZHB concluded that, based on the evidence
presented by Caln-Nether, the building coverage and impervious surface coverage
limitations in Section 155-13 were not so restrictive as to impose a substantial
burden on religious activities in violation of the RLUIPA. Id.
Caln-Nether appealed from the ZHB’s decision to Common Pleas, which
denied Caln-Nether’s appeal. While Common Pleas held that the ZHB erred in
10
concluding that the Property fell within the definition of a “small lot,”11 Common
Pleas observed that, whether a “small lot” or “large lot” in the A District, all are
bound by the same 15% building coverage and 20% impervious surface coverage
requirements under Section 155-13 of the Current Zoning Ordinance. Common
Pleas Decision at 14. As the Application provided for 24.91% building coverage and
64.77% impervious surface coverage, Common Pleas found that Caln-Nether failed
to satisfy the objective requirements of the Current Zoning Ordinance and that the
ZHB properly denied the special exception requested on that ground.12 Id. at 13-14.
Additionally, Common Pleas held that the ZHB properly rejected Caln-Nether’s
substantive validity challenge to Section 155-13 of the Current Zoning Ordinance.
Id. at 16-19. This appeal followed.
On appeal,13 Caln-Nether argues that the ZHB erroneously concluded that
Caln-Nether failed to meet the special exception standards for a proposed church
11
Common Pleas reasoned that the Zoning Ordinance of 1950 did not identify a minimum
lot requirement and that the ZHB’s application of other minimum requirements set forth therein to
create an otherwise non-existent minimum dimension was improper. Common Pleas observed that
“the exercise engaged in by the ZHB in support of its conclusion . . . can yield lots ranging in size
from 26,000 [square] feet to 35,000 [square] feet,” which “in turn could result in lots defined as
small lots or even nonconforming lots under the [Current Zoning] Ordinance.” Common Pleas
Decision at 12. Common Pleas also concluded that the ZHB erred insofar as it relied upon the
Township Zoning Map designation to classify the Property as a “small lot,” reasoning that the
purpose of a zoning map is limited to delineating zoning district boundaries. Id. at 12-13 (relying
upon Tohickon Valley Transfer, Inc. v. Tinicum Twp. Zoning Hearing Bd., 509 A.2d 896, 904 (Pa.
Cmwlth. 1986)).
12
Common Pleas also concluded that the ZHB improperly denied the Application based
on traffic concerns, as “the record did not support a finding . . . that there is a high probability that
the proposed use will generate traffic not normally generated by the type of use and that the
abnormal traffic threatens safety.” Common Pleas Decision at 16.
13
When, as in the present case, the trial court takes no additional evidence, this Court’s
review is limited to determining whether the zoning hearing board committed an error of law or
abused its discretion. Dunbar v. Zoning Hearing Bd. of City of Bethlehem, 144 A.3d 219, 223 n.4
11
use. Caln-Nether also contends that the ZHB improperly concluded that application
of the “small lot” requirements did not unreasonably restrict religious assemblies,
institutions, and structures in violation of RLUIPA.
This Court has observed as follows with respect to special exceptions:
[A] special exception is not an exception to a zoning
ordinance but, rather, is a conditionally permitted use,
allowed by the legislature if specifically listed standards
are met. [An a]pplication for a special exception is to be
granted or denied by the ZHB pursuant to the express
standards and criteria set forth in the applicable zoning
ordinance. Thus, what an applicant must demonstrate to
obtain a special exception is determined on a case-by-case
basis and will vary among municipalities based upon the
use requested and the language in the ordinance. Once the
applicant for a special exception meets his initial burden
of showing compliance with all the objective requirements
of the zoning ordinance, it is presumed that the proposed
use is consistent with the promotion of local concerns
relating to general health, safety and welfare, . . . and,
normally, the burden then shifts to any objectors to prove
that the proposed use is, in fact, detrimental to the health,
safety and general welfare of the community.
(Pa. Cmwlth. 2016). An abuse of discretion occurs when the zoning hearing board’s findings are
not supported by substantial evidence, “which is such relevant evidence that a reasonable person
would ‘accept as adequate to support a conclusion.’” Id. (quoting Valley View Civic Ass’n v.
Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983)). Further, “[w]here an appeal presents
issues of law, including issues of statutory interpretation, this Court’s scope of review is plenary
and our standard of review is de novo.” Marshall v. East Bradford Twp. Bd. of Supervisors, 250
A.3d 481, 487 n.5 (Pa. Cmwlth.) (quoting 1050 Ashbourne Assocs., LLC v. Cheltenham Twp. Bd.
of Comm’rs, 167 A.3d 828, 831 n.6 (Pa. Cmwlth. 2017)), appeal denied (Pa., No. 231 MAL 2021,
filed Oct. 14, 2021). “Because we review the ZHB’s decision, we do not address any argument
related to the trial court’s decision.” Pham v. Upper Merion Twp. Zoning Hearing Bd., 113 A.3d
879, 887 (Pa. Cmwlth. 2015).
12
Elizabethtown/Mt. Joy Assocs., L.P. v. Mount Joy Twp. Zoning Hearing Bd., 934
A.2d 759, 764 (Pa. Cmwlth. 2007) (footnote omitted) (citations omitted).14
Caln-Nether challenges the ZHB’s conclusion that the Property is a “small
lot” under Section 155-11.B. of the Current Zoning Ordinance. Taking the position
that the determination “turns on the size of the lot at the time it was created or
subdivided,” Caln-Nether argues that the Property does not meet the definition of
“small lot” provided in Section 155-11.B. of the Current Zoning Ordinance. Caln-
Nether adds that Lots 1 and 2 were created at a time when there was no minimum
lot requirement provided in the operative zoning ordinance (i.e., the Zoning
Ordinance of 1950) and before any such minimum was ever required or “small lot”
category ever existed. Caln-Nether faults the ZHB for using other minimum
requirements contained in the Zoning Ordinance of 1950 to “contrive” an otherwise
unidentified minimum lot requirement that was neither established by that ordinance
in fact nor based on the definition of “small lot” in the Current Zoning Ordinance.
As such, Caln-Nether contends, the ZHB impermissibly added language that did not
otherwise exist to reach a result inconsistent with the plain terms of the Current
Zoning Ordinance. Caln-Nether also echoes the trial court’s observation that the
ZHB improperly relied upon the Township Zoning Map designation in support of its
conclusion. Caln-Nether, thus, argues that the ZHB’s finding that the Property is a
“small lot” was clearly in error and was not supported by substantial evidence, as
determined by the trial court.
14
“An ordinance . . . may alter th[e above] general presumption by providing that the
burden rests on the applicant with regard to issues of detriment to the health, safety and welfare of
the community. However, in such a case, the applicant bears the burden of persuasion only, and
the objectors retain the burden of production with respect to the general matter of detriment to
health, safety and public welfare.” Elizabethtown/Mt. Joy Assocs., L.P., 934 A.2d at 764 n.6
(citations omitted).
13
The Township counters that the ZHB properly concluded that Caln-Nether
failed to meet the objective requirements of the Current Zoning Ordinance for a
special exception for a church use. In support, the Township contends that the same
15% building coverage and 20% impervious surface coverage limitations apply to
all lots in the A District and, thus, the lot type of the Property—which has been zoned
in the A District since 1950—is irrelevant to the issue of whether Caln-Nether is
entitled to the special exception sought. The Township adds that Caln-Nether
conceded that Lots 1 and 2 would have to be consolidated prior to land development;
thus, upon consolidation, the new lot will fit within the definition of a “large lot”
and nonetheless be subject to the same 15% building coverage and 20% impervious
surface coverage requirements. The Township also contends that we should affirm
the trial court’s decision on this issue because Caln-Nether has waived it for failing
to cite any legal authority in support of its claim.
The ZHB has also filed a brief in which it argues that it properly denied
Caln-Nether’s Application because the church building proposed by Caln-Nether
failed to meet the Township’s building and impervious surface coverage
requirements. The ZHB first emphasizes that all lots in the A District must fall under
one of the categories outlined in Section 155-11 of the Current Zoning Ordinance.
The ZHB notes that the Property does not qualify as a “nonconforming lot” or
“cluster lot” under that provision, as those categories turn on the size of the lot itself
and require the lot to be less than 40,000 square feet. The ZHB further submits the
“small lot” and “large lot” categories are not based on actual lot size, but rather by
the minimum size permitted by the applicable ordinance in effect at the time of the
lot’s creation. The ZHB observes that Lots 1 and 2 were created under the Zoning
Ordinance of 1950, which imposes various dimensional requirements that can be
14
used to calculate a minimum lot size. The ZHB also cites to Section 602 of the
Zoning Ordinance of 1950, which provides that “[n]o lot area shall be reduced, nor
shall any property be so sold or divided so as to make the open spaces about the
buildings thereon smaller than the distances required by this Ordinance.” See R.R.
at 122a; Zoning Ordinance of 1950 § 602. Using these requirements and assuming a
rectangular lot with no building, the ZHB concluded that the minimum lot size
imposed by the Zoning Ordinance of 1950 was 35,000 square feet. The ZHB
contends that, under the unique circumstances of this case, the minimum lot area
imposed by the Zoning Ordinance of 1950 qualifies as “approximately 40,000 square
feet” for purposes of Section 155-11 of the Current Zoning Ordinance; thus, the
Property is indeed made up of two “small lots.”15
The ZHB adds that, while not determinative, the Township’s Zoning Map’s
indication that the Property was comprised of small lots is probative of the
Township’s interpretation, which is entitled to deference. The ZHB further notes that
the map is a legislative component of the Current Zoning Ordinance through
incorporation by reference. The ZHB also argues that the small lot category is the
best fit for the Property and that the alternative would be to create a “phantom fifth
category not contemplated by the [Current] Zoning Ordinance which escapes area
and bulk requirements altogether” and is improper. ZHB’s Br. at 19. The ZHB also
claims that Caln-Nether represented that it intended to consolidate Lots 1 and 2 as
15
The ZHB argues that, to the extent Caln-Nether purported to demonstrate to Common
Pleas that the minimum lot size could actually fall as low as 26,000 square feet, Caln-Nether’s
calculations suffer from legal or mathematical errors or could not otherwise be verified. The ZHB
adds that, even if Caln-Nether’s calculations were correct, those calculations nonetheless
demonstrate the error in Common Pleas’ conclusion that “no” minimum lot size exists in the
Zoning Ordinance of 1950. We note that Caln-Nether presents no argument to this Court regarding
the accuracy of the ZHB’s calculations using the minimum dimensions in the Zoning Ordinance
of 1950, nor does it present any other potential minimum lot sizes using those dimensions.
15
part of its development plan and argues that, once consolidated, the Property would
be considered a “large lot.” The ZHB contends that the proposed plan providing for
24.91% of building coverage and 64.77% impervious surface coverage is
inconsistent with the area and bulk regulations for either a small lot or large lot and,
thus, the ZHB properly concluded that Caln-Nether failed to satisfy the requirements
for special exception approval.
Turning to our analysis, we note that the principles of statutory construction
also guide our interpretation of a zoning ordinance. Bloomsburg Indus. Ventures,
LLC v. Town of Bloomsburg, 242 A.3d 969, 979 (Pa. Cmwlth. 2020). Our primary
objective is to determine the intent of the legislative body that enacted the ordinance.
Id. In this regard, “we are mindful that an ordinance’s plain language generally
provides the best indication of legislative intent.” THW Grp., LLC v. Zoning Bd. of
Adjustment, 86 A.3d 330, 336 (Pa. Cmwlth. 2014). Further, “[w]ords and phrases
shall be construed according to rules of grammar and according to their common and
approved usage.” 1 Pa. C.S. § 1903(a). Additionally, every ordinance shall be
construed, if possible, to give effect to all its provisions so that no provision is “mere
surplusage.” 1 Pa. C.S. § 1921(a). Where 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. 1 Pa. C.S. § 1921. Moreover, “zoning ordinances must be
construed expansively so as to afford the landowner the broadest possible use and
enjoyment of his land. THW Grp., LLC, 86 A.3d at 336.
Having considered the parties’ arguments, we conclude that the ZHB did not
err or abuse its discretion in concluding that Lots 1 and 2 comprising the Property
are “small lots” under Section 155-11.B. of the Current Zoning Ordinance and must
comply with the 15% building coverage and 20% impervious surface coverage
16
requirements for such lots set forth in Section 155-13.B.(1) of the Current Zoning
Ordinance. It is undisputed that Lots 1 and 2 were created by subdivision in 1955
and 1958, respectively, and have always been located in the A District. Section 155-
11 of the Current Zoning Ordinance provides that “[t]here shall be four categories
of lots in A Districts,” including “large lots,” “small lots,” “nonconforming lots,”
and “cluster lots.” Current Zoning Ordinance § 155-11. A plain reading of Section
155-11 of the Current Zoning Ordinance reveals that “nonconforming lots” and
“cluster lots” turn on the size of the lot at issue and requires the lot to be less than
40,000 square feet. Lot 1, which is 2.390 acres, and Lot 2, which is 3.507 acres, are
more than 40,000 square feet and thus cannot be “nonconforming lots” or “cluster
lots.”
Unlike “nonconforming lots” and “cluster lots,” and contrary to Caln-Nether’s
position, “large lots” and “small lots” do not turn on the actual size of the lot at issue
at any given time. Rather, we agree with the ZHB that Section 155-11.A. and B. of
the Current Zoning Ordinance make that determination dependent upon the
minimum lot size required by the zoning ordinance in effect at the time the lot was
created, irrespective of the actual size of the lot. At the time Lots 1 and 2 were
created, the Zoning Ordinance of 1950 was in effect. While the Zoning Ordinance
of 1950 did not provide a total “minimum lot area” for particular lots in the A
District, it did provide minimum dimensional, setback, and depth requirements for
such lots. Using these minimum requirements, and assuming a “zero[-]square-foot
building envelope,” the ZHB calculated that the minimum lot area for lots in the A
District under the Zoning Ordinance of 1950 would be 35,000 square feet—or
“approximately 40,000 square feet”—thereby satisfying the definition of a “small
lot” under Section 155-11.A. of the Current Zoning Ordinance. As such, the ZHB
17
determined that the Property consisted of two “small lots” and would be subject to
the area and bulk restrictions for “small lots” under Section 155-13.B.(1) of the
Current Zoning Ordinance.
The ZHB’s conclusions are supported by the record and the language of the
ordinances at issue. Caln-Nether fails to persuade us otherwise, particularly under
the circumstances of this case, where the alternatives appear to be subjecting the
Property either to no area and bulk requirements or the bulk and area requirements
that pertain to a district in which the Property is not located. Moreover, our
conclusion is bolstered by the fact that Caln-Nether does not dispute that it either
will consolidate—or be required to consolidate—Lots 1 and 2 prior to land
development, at which point the Property would fall under the “large lot” category
set forth in Section 155-11.A. of the Zoning Ordinance and still be subject to the
same 15% building coverage and 20% impervious surface coverage requirements.
Thus, we conclude that the ZHB did not abuse its discretion or commit an error of
law in rendering its decision. Caln-Nether is not entitled to relief on this claim.16
Caln-Nether next argues that the ZHB improperly concluded that application
of the “small lot” requirements did not unreasonably restrict religious assemblies,
institutions, and structures in violation of the RLUIPA. Specifically relying upon
Section 2000cc(b)(3) of the RLUIPA,17 a portion of what is known as the
16
In connection with the issue of whether the ZHB properly denied Caln-Nether’s
Application, the parties also present argument regarding whether the ZHB improperly denied the
Application based on traffic concerns. Given our disposition above that the ZHB did not err or
abuse its discretion in denying the Application based on its conclusions regarding Caln-Nether’s
noncompliance with the building coverage and impervious surface coverage requirements, we
need not address the parties’ arguments as they relate to the ZHB’s denial of the Application based
on traffic concerns.
17
While Caln-Nether quotes from Section 2000cc(b)(3) of the RLUIPA, it mistakenly cites
the provision as “Section 2000cc(3).” That provision provides that “[n]o government shall impose
18
“Exclusions and Limits” provision, Caln-Nether argues that “[a]pplying the ‘small
lot’ [restrictions] . . . when they clearly do not apply substantially impedes the ability
to construct a viable church facility and unreasonably limits religious activities” in
violation of the RLUIPA. Caln-Nether’s Br. at 23-24. Caln-Nether also contends that
the ZHB improperly found that Caln-Nether failed to meet the minimum parking
spaces for a proposed church when the Current Zoning Ordinance contained no such
standards. Again relying upon Islamic Society of Basking Ridge, Caln-Nether also
claims that, given that there are no parking standards governing its proposed church
use, “the Township cannot just make up its own standards or apply what it thinks is
appropriate in its own discretion” because that “would unreasonably limit religious
activities and structures.” Id. at 24.
The Township counters that the ZHB properly concluded that application of
the A District area and bulk regulations to the Property did not impose an
unreasonable restriction on religious assemblies, institutions, or structures in
violation of the RLUIPA. The Township argues that the building coverage and
impervious surface coverage limitations in Section 155-13 of the Current Zoning
Ordinance apply uniformly to all structures in the A District. The Township adds
that, as the record demonstrates, a church or similar place of worship of
approximately 14,000 square feet could be constructed on the Property in conformity
with the Current Zoning Ordinance, which thereby renders Caln-Nether’s argument
“specious.” Township’s Br. at 19.
The ZHB contends that “it is impossible to tell how merely applying ‘small
lot’ standards is a violation of [the] RLUIPA” particularly when Caln-Nether has
or implement a land use regulation that[] . . . unreasonably limits religious assemblies, institutions,
or structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3).
19
conceded that it would be bound by the same restrictions under the “large lot”
category once it is “forced to reverse-subdivide the lots[.]” ZHB’s Br. at 27. The
ZHB also claims that the record makes clear that multiple other religious enterprises
are located in the same zoning district and comply with the same area and bulk
regulations without issue. Finally, the ZHB notes that, insofar as Caln-Nether argues
that the ZHB improperly found that Caln-Nether failed to meet the minimum parking
spaces for a proposed church, that contention is factually incorrect. The ZHB did not
conclude that Caln-Nether failed to meet the minimum parking spaces for a proposed
church and did not deny the Application on that ground.
Assuming arguendo that Caln-Nether has standing to assert such a claim,18
we are unpersuaded by its contention that the ZHB’s application of the “small lot”
requirements in this situation violated the RLUIPA. First, as concluded above, the
ZHB properly determined that the “small lot” limitations do apply to the Property.
Moreover, we agree with the ZHB that Caln-Nether fails to demonstrate how merely
applying the “small lot” standards to the Property is a violation of the RLUIPA,
under the Exclusions and Limits provision or otherwise. In this regard, Caln-Nether
does not challenge the ZHB’s determinations that a church or similar use can be
constructed on the Property under the Current Zoning Ordinance. Moreover, Caln-
Nether does not dispute that it will—either by choice or requirement—consolidate
Lots 1 and 2 prior to development, at which point the same area and bulk limitations
would apply pursuant to the “large lot” provisions of Section 155-13 of the Current
18
Both the Township and ZHB presented arguments challenging Caln-Nether’s standing
to bring a claim under the RLUIPA or otherwise question Caln-Nether’s eligibility for RLUIPA
protection; neither Caln-Nether nor the tribunals below have addressed such arguments. Further,
given our disposition of Caln-Nether’s RLUIPA-based claim as outlined herein, we likewise need
not address those arguments here.
20
Zoning Ordinance. Tellingly, Caln-Nether does not argue that the same coverage
limitations as applied to “large lots” violate the RLUIPA.
Additionally, though Caln-Nether relies upon Islamic Society of Basking
Ridge to support its arguments that the Current Zoning Ordinance contains no
parking standards for a church use and that the Township cannot “make up” such
standards as it pleases, we note that the MPC does not mandate that zoning
ordinances contain parking standards for a church use. Further, Section 155-87 of
the Current Zoning Ordinance sets forth the parking requirements governing uses in
the A and B Districts, and Caln-Nether did not challenge the substantive validity of
Section 155-87 before the ZHB. In addition, Caln-Nether “failed to introduce
evidence that the Township had endeavored to ‘make up its own standards’ for
parking requirements for a church use.” ZHB Decision at 29. Finally, while Caln-
Nether claims that the ZHB improperly found that Caln-Nether failed to meet the
minimum parking spaces for a proposed church, we agree with the ZHB that it made
no such determination and did not deny Caln-Nether’s Application on that basis.
Caln-Nether, therefore, has likewise failed to persuade this Court that it is entitled
to relief on this issue.
For the reasons stated, we affirm the order of Common Pleas, albeit on
somewhat different grounds with respect to the first issue on appeal.
ELLEN CEISLER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Caln-Nether Company, LP, :
Appellant :
:
v. : No. 1077 C.D. 2020
:
Zoning Hearing Board of Thornbury :
Township and Thornbury Township :
ORDER
AND NOW, this 8th day of December, 2021, the order of the Court of
Common Pleas of Chester County, dated September 24, 2020, is hereby
AFFIRMED.
ELLEN CEISLER, Judge