June 15, 2009

Silver Lake Township Planning Commission
c/o Brian Gardner
117 Woodland Road
Brackney, PA    18812

RE:  Building Ordinance

Dear Brian:

Please allow this to serve as a formal response to the questions which you posed concerning ordinances involving building restrictions etc.  My recollection is that the specific questions were whether or not a building ordinance can include set back provisions for residential and commercial premises, and whether or not residential and commercial set backs must be the same.

With regard to the research which I have done, it appears very evident that a municipality has the full authority under its police power to pass ordinances which deal with restrictions on use of property including such things as set backs and lot size.  

Each municipality within the Commonwealth can enact, amend and repeal ordinances which implement comprehensive development plans for a municipality which clearly sets forth its goals and intentions for enacting such an ordinance.   Set backs fall within the restriction allowed for accomplishing the goals of the ordinances in general.  Building Ordinances should reflect policy goals of the community that is establishing them and such a policy must give consideration to the character of the municipality, the needs of the citizens and the suitability and special nature of particular areas of the municipality.   The use of set backs in a building ordinance is clearly set forth in 53 PS 10603.  

PA case law supports municipality’s ability to enact such ordinances pursuant to its police power, including those which deal with restrictions on use of property including such things as set backs and lot size.  A municipality must be careful to have a clear plan and an objective policy, in writing to establish the purpose or intent of the building or zoning ordinance that they are creating.   Such a plan should be comprehensive and intended for the benefit of the entire community.   The ordinance must promote public health, safety and welfare and it must be substantially related to the purpose it is intended to serve.   The judicial standard in construing an ordinance is its reasonableness, which is established by the consistency with which the ordinance meets the stated purpose of the zoning or building district. 

As to the issue of commercial versus residential set backs, Pennsylvania municipal law is silent on this point.  It is my opinion that set backs may be different for residential areas as opposed to commercial areas as long as the guidelines set forth herein are adhered to.

Based upon my review of the Pennsylvania statutory authority and Pennsylvania case law, it is my opinion that Silver Lake Township may indeed establish set backs for buildings/use of property within its boundaries and place set backs for commercial and residential properties that are different. 

If there is any other information you need or if I can be of further assistance, please do not hesitate to contact me.

Sincerely yours,

 

Marion O’Malley, Esquire