Circleville Road Partners LP v. ZHB of the Twp. of Ferguson v. Twp. of Ferguson

C
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Circleville Road Partners, LP,       :
                   Appellant         :
                                     :
             v.                      :
                                     :
Zoning Hearing Board of the Township :
of Ferguson                          :
                                     :     No. 1717 C.D. 2019
             v.                      :
                                     :     Argued: October 15, 2020
Township of Ferguson                 :
                                     :
             v.                      :
                                     :
Residential Housing Land, LLC and    :
Residential Housing Development, LLC :
                                     :
             v.                      :
                                     :
Pine Hall Development Company f/k/a :
Pine Hall Development Corporation    :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                               FILED: December 31, 2020


            Circleville Road Partners, L.P. (CRP) appeals from the October 21, 2019
order of the Court of Common Pleas of Centre County (trial court) affirming the
decision of the Zoning Hearing Board of the Township of Ferguson (ZHB), which
denied CRP’s substantive validity challenge to an amendment to the section of the
Ferguson Township’s zoning ordinance that comprises the Traditional Town
Development (TTD) District (TTD Amendment).
             At the center of this dispute lies the fact that the TTD zoning district
essentially encompasses only two parcels of property that are owned by two
developers. Although the TTD Amendment equally affords both developers with
more relaxed developmental standards and an enhanced opportunity for increased
development, the TTD Amendment, as applied to the facts and circumstances of this
case, could conceivably provide one developer with a more advantageous chance for
economic gain. However, this can be said of all legislation that is economic and
developmental in nature, i.e., some businesses will be able to capitalize from the
legislation to a greater degree or extent than others, but this fact, alone, does not
render a law unconstitutional. Because we conclude that the TTD Amendment does
not violate substantive due process, does not constitute illegal spot zoning or
unlawful special legislation, and is not void for vagueness, we affirm the trial court’s
order.


                                     Background
             In its decision, the ZHB set forth the procedural and factual background
of this case as follows:


             1.   The [a]pplicant is [CRP] of 125 Lyndhurst Circle,
             Wexford, Pennsylvania.

             2.     The [i]ntervenors are Residential Housing Land, LLC
             and Residential Housing Development, LLC (hereinafter
             jointly “RHD”).



                                           2
3.    CRP is the owner of a certain parcel of real estate
located at the intersection of Blue Course Drive and
Circleville Road[,] hereinafter referred to as the “Turnberry
Tract.”

4.     RHD is the equitable owner of that certain parcel of
real estate, containing approximately 90 acres, at the
intersection of Blue Course Drive and Old Gatesburg Road,
hereinafter referred to as the “Pine Hall Tract.”

5.    The Turnberry Tract and the Pine Hall Tract are
adjoining properties that share a common boundary line.

6.    The Turnberry Tract and the Pine Hall Tract are both
zoned “TTD[.]”

7.     In 2010, Ferguson Township approved a master plan
known as the “Pine Hall Master Plan” for the Pine Hall
Tract, subject to certain conditions and modifications.

8.    Subsequent to 2010, two phases of the Pine Hall
Tract were submitted and approved by the Ferguson
Township Board of Supervisors.

9.    The remainder of the Pine Hall Tract has not been
developed due to a downturn in economic conditions.

10. In December 2011, the Township Board of
Supervisors approved CRP’s General Master Plan for the
Turnberry Tract, subject to certain conditions and
modifications.

11. CRP has expended financial resources to develop a
portion of the Turnberry Tract in accordance with its
General Master Plan.

12. At the present time the Turnberry Tract is
approximately 50% developed.

13. CRP has since sold portions of the Turnberry Tract to
third parties.



                             3
14. Beginning in 2015, RHD met with the township staff
to discuss modifications of the Pine Hall Master Plan so that
its stalled development could move forward.

15. On February 2, 2017, the Township held a Charette
that was duly noticed and open to the public for the purpose
of discussing the Pine Hall Master Plan.

16. On March 16, 2017, RHD applied to Ferguson
Township for a text amendment . . . to [s]ection 27-701 of
the zoning ordinance[, i.e., the TTD Amendment].

17. On March 8, 2017, the Ferguson Township Planning
Commission held a meeting at which counsel for RHD
made a presentation in favor of the adoption of the TTD
Amendment.

18. At the June 26, 2017 Planning Commission meeting,
a presentation was made on behalf of RHD by a landscape
architect.

19.   On September 5, 2017, the Township Board of
Supervisors held a public hearing on the TTD Amendment.

20. On September 18, 2017, the Board of Supervisors
conducted the public hearing, and at its conclusion the
Board approved the TTD Amendment (Ordinance Number
1034-2017), to [s]ection 27-701 of the zoning ordinance.

21. [The TTD Amendment] made the following
modifications to the section of the zoning ordinance
involving “Traditional Town Developments”:

A.    Increased the number of unrelated persons from 3 to
4 who may inhabit a single[-]family attached, detached and
semi-detached residential unit under certain circumstances;
B.    Provided a process whereby a developer may request
modifications to design standards where specific physical
conditions on the property justify such modifications;
C.    Reduce[d] from 100% to 50% the number of
townhouse units that must be accessed by rear garages, and
allows that other 50% to be accessed by front garages;


                             4
D.      Reduce[d] from 100% to 25% the number of
commercial buildings that must have second story
residential or office uses;
E.      Increase[d] from 5 stories to 8 stories the maximum
permitted height of multi-family buildings;
F.      Reduce[d] from 15% to 5% the minimum percentage
of permissible single[-]family detached dwellings;
G.      Increase[d] from 30% to 50% the maximum
percentage of permissible multi-family dwellings;
H.      Reduce[d] from 200 feet to 150 feet the minimum
block depth/width size;
I.      Increase[d] from 4 to 6 the maximum number of
townhome dwellings on a single lot;
J.      Eliminate[d] the mandatory mix of single family and
townhome[] unit[s] within a block;
K.      Reduce[d] the permissible size of lots for single[-
]family detached dwellings, single[-]family attached
dwellings and multi-family dwellings;
L.      Increase[d] the permissible size of lots for
commercial uses;
M. Increase[d] the permissible size of commercial
buildings and retail buildings;
N.      Increase[d] the permissible size of anchor retail units;
O.      Eliminate[d] any maximum limitation of residential
units in a single structure;
P.      Increase[d] the maximum impervious lot coverage to
85%;
Q.      Reduced from 40 feet to 10 feet the front yard
setback for garages;
R.      Reduce[d] from 5 feet to 0 the rear yard setback;
S.      Eliminate[d] the 50% transparency requirement for
first floors of certain retail uses;
T.      Increase[d] from 60% to 90% the off-street parking
requirements, and hence the capacity of parking
compounds;
U.      Eliminate[d] the maximum required on-site parking
spaces;
V. Allow[ed] stormwater management facilities to be
include[ed] in areas designated for open or public spaces;
[and]
W. Remove[d] the prohibition of drive[-]through
services.


                               5
             22. On October 13, 2017, [] CRP filed with [the ZHB] a
             timely substantive validity challenge to [the TTD
             Amendment].
(Findings of Fact (F.F.) Nos. 1-22.)
             In its substantive validity challenge, CRP contended that the TTD
Amendment is unconstitutionally vague, not substantially related to a legitimate
government interest, and constitutes illegal spot zoning and/or illegal special
legislation. The primary argument underlying CRP’s challenges was that the TTD
Amendment was enacted at the request of RHD and was designed specifically to
benefit RHD and its development of the Pine Hall Tract. CRP also asserted that the
TTD Amendment created unclear and inconsistent standards for the grant of
modifications, thus rending it void for vagueness.
             In rejecting these claims, the ZHB generally concluded that the Board of
Supervisors of Ferguson Township “acted within its authority in making the
amendments to fashion the TTD ordinance as it best saw fit the needs of the
[T]ownship.” (ZHB’s decision at 14.) The ZHB acknowledged that the “TTD
Amendment covered two large tracts, one that was subsequently purchased and has
now been partially developed by [CRP], and the second which has been partially
developed, and the residue of which is now under contract to [RHD].” Id. at 15.
Nonetheless, the ZHB concluded that “[t]he [A]mendment is not directed at one
particular property, but applies to the TTD zoning district as a whole[,] . . . including
undeveloped lands still owned by [CRP] and the undeveloped lands under contract to
[RHD].”    Id.   The ZHB further concluded that the TTD Amendment “is not
confiscatory” in that it “does not eliminate any rights that [CRP] previously had in its
property”; CRP “can proceed to develop the remainder of the property in the exact
fashion it had originally intended”; and the TTD Amendment “does not increase the
restrictions of the zoning ordinance, but rather loosens them.” Id. at 15-16.

                                           6
                  Moreover, the ZHB noted that, under section 107 of the Pennsylvania
Municipalities Planning Code (MPC),1 a “[t]raditional [t]own [d]evelopment” district
contains mixed uses and is configured to integrate residential units and commercial
uses in a single district. The ZHB found that “[t]he stated purpose of the Ferguson
Township TTD ordinance closely follows the language of the MPC.” Id. at 13. The
ZHB further commented:

                While it is clear that [CRP] strongly disagrees with the
                direction in which the [TTD Amendment] takes the TTD
                ordinance, it is the legislative function of the Board of
                Supervisors to enact zoning ordinances and to amend them.
                The challenge raised by [CRP] with respect to the design
                features of the TTD Amendment boil down to matters of
                degree. While the TTD Amendment may arguably create a
                Traditional Town Development [district] that is off the
                mark of what the legislature ideally intended, this Board[,
                i.e., the ZHB] cannot say that the amended ordinance is an
                invalid exercise of the authority of the Board of
                Supervisors.
Id. at 14.
                Finally, the ZHB provided a comprehensive discussion of the
modification provisions in section 3 of the TTD Amendment in relation to the
modification provisions of the original TTD ordinance. The ZHB concluded that the
portions of the TTD Amendment in this respect were clear and unambiguous and,
therefore, were not void for vagueness. (ZHB’s decision at 9-11.)
                For these reasons, the ZHB denied CRP’s substantive validity challenge
to the TTD Amendment.
                CRP then filed a land use appeal with the trial court. Without receiving
additional evidence, the trial court affirmed the decision of the ZHB. In so doing, the

       1
           Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10107.



                                                  7
trial court noted that a “TTD is a mixed-use zoning district” and agreed with the
ZHB’s factual findings and legal conclusion that the purpose of the TTD Amendment
was consistent with the definition of a “Traditional Neighborhood Development” in
the MPC. (Trial court op. at 4-5.) The trial court reiterated the stated purpose of the
TTD district, quoting the ordinance’s overall intent in creating the TTD district “to
produce sustainable, long term development which enhances the quality of life . . . to
ensure the highest possible economic and social benefits for all residents . . . [and] to
encourage innovation and promote flexibility, economy, and ingenuity in
development and to be consistent with the goals and objectives enumerated by the
provisions of Article VII -A of the [MPC].” (Trial court op. at 5, quoting Ordinance,
§27-701(1)(A)-(B)).2 See Circleville Road Partners, L.P. v. Township of Ferguson,

       2
         Section 702-A(1)(ii) of the MPC “permit[s] the creation of a traditional neighborhood
development in any part of the municipality or in one or more specified zoning districts.” 53 P.S.
§10702-A(1)(ii). Article VII-A of the MPC, added by the Act of June 23, 2000, P.L. 495. Section
107 of the MPC, in turn, defines “Traditional Neighborhood Development” as

              an area of land typically developed for a compatible mixture of
              residential units for various income levels and nonresidential
              commercial and workplace uses, including some structures that
              provide for a mix of uses within the same building. Residences,
              shops, offices, workplaces, public buildings and parks are interwoven
              within the neighborhood so that all are within relatively close
              proximity to each other. Traditional neighborhood development is
              relatively compact and oriented toward pedestrian activity. It has an
              identifiable center and a discernible edge. The center of the
              neighborhood is in the form of a public park, commons, plaza, square
              or prominent intersection of two or more major streets. Generally,
              there is a hierarchy of streets laid out with an interconnected network
              of streets and blocks that provides multiple routes from origins to
              destinations and are appropriately designed to serve the needs of
              pedestrians and vehicles equally.

53 P.S. §10107.



                                                8
209 A.3d 1125, 1137 (Pa. Cmwlth. 2019) (concluding that the TTD Amendment
constituted a zoning map change, rather than a text amendment, and that the TTD
Amendment “did not change the nature of the TTD as a mixed[-]use district nor did
[it] create a new land use category”).
              Next, the trial court stated that it

              has gleaned from the ZHB’s findings of fact that the
              catalyst for the TTD Amendment was a need to finish
              developing the Pine Hall Tract which was frustrated by the
              TTD ordinance as it was previously enacted. Despite this
              singular goal, the TTD Amendment, on its face and within
              the context of the entire TTD ordinance, is not arbitrary,
              unreasonable, and bears a substantial relationship to the
              public health, safety, morals, and general welfare. The
              TTD Amendment is not unduly restrictive or exclusionary
              [because] it actually expands the uses in a TTD zoning
              district. Also, [CRP] did not receive disparate treatment
              with the enactment of the TTD Amendment simply because
              it went through modification procedures provided in the
              previously enacted TTD ordinance to request the
              modifications to [greater] develop its land, as opposed to
              RHD proposing a text amendment to achieve the same
              goals.
(Trial court op. at 6.)
              In making this determination, the trial court cited case law from this
Court holding that the state of mind of a legislative body in amending a zoning
ordinance is not relevant to determining its validity and that the strenuous lobbying
by a supporter does not itself render the amendment unlawful special legislation.
(Trial court op. at 5.) Moreover, the trial court concluded that “the TTD Amendment
does not constitute spot zoning or special legislation because the Pine Hall Tract was
not singularly rezoned, and the TTD Amendment does not prevent [CRP], or any
other landowner, from a lawful use of [its] land.” (Trial court op. at 8.) Ultimately,
the trial court agreed “with the findings of the ZHB that the TTD Amendment is

                                              9
applicable to the TTD zoning district in its entirety, and is not directed toward only
the Pine Hall Tract.” Id.
              Finally, the trial court determined that the modification provisions of the
TTD Amendment, when compared to or considered in light of the modification
provisions of the prior TTD ordinance, were “not inconsistent and would not cause a
person of common intelligence to guess at their meaning.” (Trial court op. at 6.) In
so deciding, the trial court noted that section 13 of the TTD Amendment repealed the
existing modification provisions within the original TTD ordinance to the extent they
were irreconcilable. Id.
              CRP then filed an appeal with this Court.3


                                           Discussion
              First off, CRP contends that the trial court committed an error of law in
failing to declare the TTD Amendment unconstitutional because it was enacted with
no express public purpose but, instead, was passed only to implement RHD’s specific
development plans. CRP states that the TTD Amendment does not contain any
recitals addressing a purpose related to the promotion of public health, safety, and
welfare and cites an excerpt from the trial court’s opinion, wherein the trial court
“gleaned from the ZHB’s findings of fact that the catalyst for” and the “singular goal”
of “the TTD Amendment was a need to finish developing the Pine Hall [T]ract which
was frustrated by the TTD ordinance as it was previously enacted.” (CRP Br. at 36;
Trial court op. at 6.) On this note, CRP asserts that the TTD Amendment does not

       3
         This Court’s scope of review in a zoning case where, as here, the trial court did not take
additional evidence is limited to reviewing whether the trial court committed an error of law or
abused its discretion. Shaw v. Township of Upper St. Clair, 71 A.3d 1103, 1107 n.5 (Pa. Cmwlth.
2013).



                                                10
bear a substantial relationship to any legitimate public purpose and, therefore,
violates substantive due process.
             “A zoning ordinance is presumed to be valid.              Therefore, one
challenging the zoning ordinance has the heavy burden of establishing its invalidity.
Where the validity of the zoning ordinance is debatable, the legislative judgment of
the governing body must control.” Woll v. Monaghan Township, 948 A.2d 933, 938
(Pa. Cmwlth. 2008). “In Pennsylvania, the constitutionality of a zoning ordinance is
reviewed under a substantive due process analysis.” Plaxton v. Lycoming County
Zoning Hearing Board, 986 A.2d 199, 204 (Pa. Cmwlth. 2009). “Under such
analysis, the party challenging the validity of provisions of the zoning ordinance must
establish that they are arbitrary and unreasonable and have no substantial relationship
to promoting the public health, safety, and welfare.” Id.
             Further, “the exercise of judgment in regard to zoning regulations will
not be interfered with except where there is obviously no relation to health, safety,
morals or general welfare.” Ethan-Michael, Inc. v. Board of Supervisors of Union
Township, 918 A.2d 203, 210 (Pa. Cmwlth. 2007).             If there is any reasonably
conceivable state of facts that could provide a rational basis for the zoning law, the
challenged law will be upheld. Corteal v. Department of Transportation, 821 A.2d
173, 177 (Pa. Cmwlth. 2003). Importantly, a legislative body need not articulate its
reasoning at the moment a particular decision is made, and a legislative choice may
be based on rational speculation unsupported by evidence or empirical data. See
Adams Outdoor Advertising, LP v. Zoning Hearing Board of Smithfield Township,
909 A.2d 469, 478 (Pa. Cmwlth. 2006); Corteal, 821 A.2d at 177. Because the courts
do not require a legislative body to articulate its reasons for enacting a law, it is
entirely irrelevant for constitutional purposes whether the conceived reason for the



                                          11
challenged distinction actually motivated the legislature. In Takacs v. Indian Lake
Borough Zoning Hearing Board, 11 A.3d 587 (Pa. Cmwlth. 2010), this Court
recounted:

             The fact that rezoning is done at the request of a landowner
             does not, in and of itself, invalidate a rezoning. Schubach v.
             Silver, 336 A.2d 328, 337 (Pa. 1975). Indeed, in Plaxton[,
             986 A.2d at 210], this [C]ourt stated that: (1) the state of
             mind of a legislative body in amending a zoning ordinance
             is not relevant to determining its validity; (2) the
             amendment must stand or fall on its own terms; and (3)
             even the strenuous lobbying by supporters does not itself
             render the amendment special legislation.
Takacs, 11 A.3d at 594.
             Here, we discern from text of the TTD Amendment that it was enacted
to encourage greater economic development, which is a legitimate state interest. See
Robinson Township v. Commonwealth, 83 A.3d 901, 954 (Pa. 2013). The TTD
Amendment accomplishes this goal by reducing the developmental restrictions in the
original TTD ordinance and by allowing for increased dimensional standards. See
F.F. No. 21A.-W. Because the measures employed by the Board of Supervisors in
the TTD Amendment clearly advance the goal of obtaining greater development and
economic prosperity, we conclude that there is a substantial relationship between
what the Amendment permits and endorses with the object that it seeks to obtain.
Although RHD initiated and requested the Board of Supervisors to enact the TTD
Amendment, as stated above, this does not negate or otherwise alter the fact that the
TTD Amendment, on its face, substantially furthers a legitimate governmental
interest. Therefore, we conclude that CRP’s substantive due process claim fails.
             Second, CRP asserts that the TTD Amendment constitutes illegal spot-
zoning and special legislation because it was enacted “for no reason or purpose other



                                          12
than to favor the private interests of [RHD] while disregarding a community[-]wide
perspective.” (CRP Br. at 49.) CRP further contends that CRP’s “[p]roperty was the
only property assembled to be developable as a TTD other than Turnberry in the TTD
[z]oning [d]istrict, and as Turnberry is being developed pursuant to the [original]
TTD [o]rdinance, the TTD Amendment effectively applies only to [RHD’s]
[p]roperty.”    Id. at 50.   As such, CRP argues that the TTD Amendment is
discriminatory and confiscatory in nature.
               Under Pennsylvania law, spot zoning is the unreasonable or arbitrary
zoning classification of a small parcel of land, dissected or set apart from surrounding
properties, with no reasonable basis for the differential zoning. Penn Street, L.P. v.
East Lampeter Township Zoning Hearing Board, 84 A.3d 1114, 1120 (Pa. Cmwlth.
2014). “The most determinative factor in an analysis of a spot zoning question is
whether the parcel in question is being treated unjustifiably different from similar
surrounding land, thus creating an ‘island’ having no relevant differences from its
neighbors.” Id. at 1121 (citation omitted). Somewhat similarly, “[s]pecial legislation
is described as an ordinance that is unjustly discriminatory, arbitrary, unreasonable,
and confiscatory in its application, in that it [is] aimed at [a] particular piece of
property. The most important inquiry then, is whether a particular piece of property
is subject to discriminatory treatment.” Plaxton, 986 A.2d at 210 (internal citations
omitted).      However, “[a]n amendatory zoning ordinance constitutes special
legislation only where it is enacted to prevent a lawful use of land permitted under the
existing ordinance.” Id. at 210-11 (internal citation omitted).
               Here, we agree with the trial court’s conclusion that “the TTD
Amendment does not constitute spot zoning or special legislation because the Pine
Hall Tract was not singularly rezoned, and the TTD Amendment does not prevent



                                           13
[CRP], or any other landowner, from a lawful use of [its] land.” (Trial court op. at 8.)
We further note the ZHB’s uncontested finding that, at the time of the zoning
proceedings, CRP only developed approximately 50% of the Turnberry Tract, (F.F.
No. 12); consequently, the remaining portion of the land can theoretically be
developed under the standards enunciated in the TTD Amendment. Moreover, as the
trial court and ZHB concluded, “[t]he TTD Amendment is not unduly restrictive or
exclusionary [because] it actually expands the uses in a TTD zoning district,” (Trial
court op. at 6); the TTD Amendment “is not confiscatory” in that it “does not
eliminate any rights that [CRP] previously had in its property”; CRP “can proceed to
develop the remainder of the property in the exact fashion it had originally intended”;
and the TTD Amendment “does not increase the restrictions of the zoning ordinance,
but rather loosens them.” (ZHB’s decision at 15-16.) See Circleville Road Partners,
L.P., 209 A.3d at 1137 (concluding that “the amendments imposed by [the TTD
Amendment] apply to [RHD’s] property, [CRP’s] property and any other property
within a TTD in a mixed[-]use district and, therefore, do not make a substantial
change to the manner in which one tract of land is zoned as compared to other
properties similarly zoned”).
             Based on these determinations, and the undisputed findings of fact that
support them, we conclude that CRP’s spot zoning and special legislation claims lack
merit. See Plaxton, 986 A.2d at 210-211 (rejecting claims of illegal spot zoning and
special legislation where the amendatory ordinance had no confiscatory application
and was not enacted to prevent any lawful use of the property; instead, the property at
issue was not rezoned at all by the amendatory ordinance, and the amendatory
ordinance merely permitted a new use in a zoning district); Klein v. Council of City of
Pittsburgh, 643 A.2d 1107, 1118 (Pa. Cmwlth. 1994) (rejecting claims of illegal spot



                                          14
zoning and special legislation where an ordinance permitted “medical private use
helistops in conjunction with hospitals as a conditional use in six different zoning
districts”; the ordinance “d[id] not rezone [Shadyside Hospital’s] property nor single
it out for preferential treatment among other area hospitals; and, “[i]n fact, [the
ordinance] confer[red] no benefit on Shadyside Hospital that [was] not similarly
bestowed on any other city hospital”).               We retain this conclusion despite the
possibility that RHD, as a practical matter, may be committed to certain
developmental projects that were designed and blueprinted under the prior version of
the TTD ordinance and that it may be economically unfeasible for RHD to change
course and redesign those developmental projects under the relaxed standards of the
TTD Amendment.
              In so deciding, this Court reiterates that the fact that a zoning change is
done at the request of a landowner does not, in and of itself, invalidate an amendment
to a zoning ordinance. See Takacs, 11 A.3d at 594. Further, “an ordinance will not
be found unconstitutional merely because it deprives the owner of the most lucrative
and profitable uses; as long as the property in question may be reasonably used for
the purposes permitted under the ordinance, the owner may not legally complain.”
KS Development Company, L.P. v. Lower Nazareth Township, 149 A.3d 105, 116
(Pa. Cmwlth. 2016).4 As previously stated by this Court, “[i]f the validity of a zoning
ordinance is debatable, it must be permitted to stand.” Takacs, 11 A.3d at 594. We
conclude that this is the situation here.


       4
          Perhaps notably, CRP does not advance a claim that the TTD Amendment was the
byproduct of unlawful contract zoning, see Knight v. Lynn Township Zoning Hearing Board, 568
A.2d 1372, 1375-77 (Pa. Cmwlth. 1990); Lake v. Zoning Hearth Board of Warrington Township
(Pa. Cmwlth., No. 1061 C.D. 2013, filed March 18, 2014) (unreported), slip op. at 13-14, nor does it
assert a de facto exclusionary claim. See KS Development Company, L.P., 149 A.3d at 113-17.



                                                15
             Third and last, CRP asserts that section 3 of the TTD Amendment is
void for vagueness because it is “inconsistent with the thoughtful, goal[-]oriented
modification provisions in the original ordinance” and “results in unclear . . . and
irrational standards for the grant of modifications.” (CRP Br. at 54.)
             “A law is void on its face if it is so vague that persons of common
intelligence must necessarily guess at its meaning and differ as to its application.”
Fabio v. Civil Service Commission of City of Philadelphia, 414 A.2d 82, 84 (Pa.
1980) (quotation marks and citation omitted). “The void for vagueness doctrine
incorporates the due process notions of fair notice or warning.” Id. at 85
             Here, section 3 of the TTD Amendment provides as follows:

             SECTION 3. Section 27-701.2 of the Zoning Ordinance is
             hereby amended to add the following to the end of that
             section:

             The Board of Supervisors may allow for modification of the
             design standards applicable to a [TTD] provided for in this
             Section[,] 27-701, including, but not limited to
             compactness, pedestrian orientation, street geometry or
             other related design features, in accordance with the
             standards applicable to the grant of modifications under
             Chapter 22, Subdivision and Land Development, §22-105.
(Reproduced Record (R.R.) at 729a.)
             Section 22-105 of the Ordinance provides for modifications, in part, as
follows:

             An applicant may request the Board of Supervisors to grant
             a modification of the requirements of one or more
             provisions of this Chapter if the literal enforcement will
             exact undue hardship because of peculiar conditions to the
             land in question; provided, that such modification will not
             be contrary to the public interest and that the purpose of the
             intent of this Chapter is observed . . . .



                                          16
(R.R. at 363a.)
             While it is difficult for us to discern the exact manner in which CRP
asserts that section 3 of the TTD Amendment is vague, based on the plain language of
that provision, it is apparent that the Board of Supervisors may grant a modification
for the design features applicable to the TTD zoning district.    And, in referencing
section 22-105 of the Ordinance, section 3 of the TTD Amendment simply
incorporates the governing legal standards used to grant such a modification.
Although the provisions of original ordinance pertaining to TTD zoning district set
forth 12 different “design standards,” including but not limited to, on-street parking,
public space, and natural building techniques, (R.R. at 384a-85a), these subjects, in
general, are technically still available for modification under section 3 of the TTD
Amendment. However, to the extent that these subjects are inconsistent with the
TTD Amendment, section 13 of the TTD Amendment states that “[a]ny ordinances or
parts of ordinances inconsistent herewith are hereby repealed.” (R.R. at 734a.) An
ordinance is not void for vagueness merely because the reader may have to cross-
reference and compare different sections or parts of that ordinance. See Halfacre v.
Kelley, 594 S.W.3d 36, 39 (Ark. 2020) (“With respect to [the defendant’s] claim that
the reference to robbery in the aggravated-robbery statute rendered the statute
‘vague,’ the fact that one statute referenced the other did not prevent a person of
ordinary intelligence from having fair warning of what was prohibited.”). Therefore,
we find no merit in CRP’s contention that the TTD Amendment is unconstitutionally
vague.




                                          17
            Accordingly, for the above-stated reasons, we affirm the trial court’s
order denying CRP’s land use appeal from the ZHB’s decision denying CRP’s
substantive validity challenges to the TTD Amendment.


                                        ________________________________
                                        PATRICIA A. McCULLOUGH, Judge




                                       18
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Circleville Road Partners, LP,       :
                   Appellant         :
                                     :
             v.                      :
                                     :
Zoning Hearing Board of the Township :
of Ferguson                          :
                                     :     No. 1717 C.D. 2019
             v.                      :
                                     :
Township of Ferguson                 :
                                     :
             v.                      :
                                     :
Residential Housing Land, LLC and    :
Residential Housing Development, LLC :
                                     :
             v.                      :
                                     :
Pine Hall Development Company f/k/a :
Pine Hall Development Corporation    :


                                   ORDER


            AND NOW, this 31st day of December, 2020, the October 21, 2019
order of the Court of Common Pleas of Centre County is hereby affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge

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