On July 21, developer Brian O’Neill, through the entity 900 Conshohocken Road, LLC, filed a substantive validity challenge with Plymouth Township, arguing that the township’s zoning code fails to accommodate a legitimate land use (in this case, a data center). O’Neill currently has a data center application that seeks a special exception for 900 Conshohocken Road in Conshohocken (Plymouth Township). This zoning hearing process began in June, and the next hearing date is August 6th.

Attorneys Blaine Lucas and Anna Jewart of Babst Calland explain a substantive validity challenge as follows:

Under Pennsylvania law, the question of where certain uses are permitted to occur is fundamentally a local issue. By delegation of the police power through the Municipalities Planning Code, 53 P.S. §§10101 et seq., local governments are vested with the power to adopt zoning ordinances and zoning maps outlining what uses are allowed in what areas within their boundaries. Zoning ordinances are presumed to be valid, and the decision as to where specific uses are permitted is largely within the discretion of the local governing body.

A party challenging the substance of a zoning ordinance bears a heavy burden of proving the provisions are “arbitrary, and unreasonable, and have no substantial relationship to promoting its public health, safety, and welfare.” When reviewing these types of challenges, courts are required to balance the public interest to be served with the confiscatory or exclusionary impact of the ordinance on individual property rights. Although property owners frequently challenge the substantive validity of ordinances they feel are too confiscatory, objectors have also challenged ordinances for being too permissive of a certain use―alleging that they fail to have the required connection to public health, safety or welfare.

In this case in Plymouth Township, O’Neill has filed a substantive validity challenge “in the alternative” to the existing special exception application for the data center. This is considered a “dual-track land use strategy,” meaning that the developer still seeks the special exception under the current zoning, but at the same time, argues that if the current zoning prevents the project, those rules are unconstitutional or illegal.

In response to the challenge, Plymouth Township’s council offered in a statement, “Township Council has publicly stated that it believes the existing Zoning Ordinance already provides a lawful process for reviewing data centers through the Special Exception provisions of the ordinance. Council has also authorized the Township Solicitor to oppose both the pending Special Exception
application and the Validity Challenge.”

You can read the submitted validity challenge here.

The challenge will be heard before the township’s zoning hearing board, the same body holding hearings for the special exception application. A date for a hearing has not been announced.

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