State College

Ferguson Township Zoning Hearing Board grants appeal for development plan

The Zoning Hearing Board approved an appeal Tuesday granting the developer of the proposed Cottages at State College the ability to submit a final plan for approval with a 90-day review period.

The hearing originally was slated to review a variance request granted by the township supervisors March 16. According to the township code of ordinance dealing with planned residential developments, a tentative plan must be approved by the Board of Supervisors. A pre-final submission plan is then required with a 90-day review period before a final plan is submitted and reviewed.

According to township zoning administrator Jeff Ressler, the pre-final design stage was put in the ordinance in 2003 to allow for review time. Following a tentative design, the pre-final design would include street, sanitary and stormwater plans for the development and be approved by the planner, zoning administrator, fire chief, water and sewer provider and township engineer.

Board member Charles Farrelly recused himself from the hearing because, he said, he owns property adjacent to the development in discussion.

Attorney Ron Lucas, representing the Toll Bros. builders, said the appeal was submitted Monday.

PennTerra Engineering President John Sepp, project engineer, said following the tentative PRD approval, his firm typically moves straight to the final plan phase. In prior dealings with the township, this was the first time this pre-final step was required.

The plan submitted to the township on March 6 includes everything needed to satisfy the pre-final requirements, he said, and is considered to be the final plan for the development. The final design phase includes up to 45 days of review.

In order to satisfy the time required for review, Lucas said, a formal request was submitted asking that an additional 45 days be added to the final review phase, bringing the total review time for the final plan to 90 days ending on June 6.

No changes have been made to the plan since, Sepp said. Everything required in the pre-final plan is included in the final submission with additional required information.

“It would actually be more efficient for the township staff to review the plan as a final plan,” he said, “because there would be redundancy in review if we did the pre-final step and the final step.”

Board member Michael MacNeeley confirmed that the final plan would still need to be reviewed by the planner, zoning administrator and all others required to sign off on the plan in the pre-final stage.

According to Lucas, Ressler followed the letter of the township ordinance, agreeing that it includes a required pre-final stage. However, the Pennsylvania Municipalities Planning Code, which authorizes the PRD ordinance, states that there can only be a two-step procedure in the ordinance — a tentative and a final stage.

According to section 702 of the planning code, “Such provisions shall set forth the procedures pertaining to the application for, hearing on and tentative and final approval of a planned residential development, which shall be consistent with the provisions of this article for such applications and hearings.”

Lucas also cited a 1972 Pennsylvania Commonweath Court opinion in which a township required a presubmission stage before the tentative phase. The court ruled that only two steps are authorized — an additional step can’t be added.

The application of the ordinance is inconsistent with the code, he said, adding, “Just following the ordinance, if it’s inconsistent with the planing code, that’s a violation of the law if you follow the ordinance and not the law.”

Following a brief executive session to discuss legal matters, the board took public comments. Residents felt the public deserved as much time to review the plan as possible, especially in light of concerns regarding the development’s proximity to nearby groundwater resources.

The board unanimously agreed to grant the appeal.

According to board solicitor Jeff Stover, granting the appeal makes the variance request a moot point. Lucas said that if the appeal is granted, he would withdraw the variance request.

“The state law trumps our ordinance,” board Chairman Matthew Patch said. “We’ll probably have to revisit that at some point.”