A decision by Lancaster County Court of Common Pleas Judge Miller vacates the Manheim Township Board of Commissioners’ 2008 approval to fill in the flood plain as part of the Crossings at Conestoga Creek Planned Commercial Development.
The Judge ruled the Board of Commissioners did not have the power to modify the provisions of the Flood Plain Ordinance. The matter has been remanded to the Board for further consideration.
According to the Commissioners meeting minutes of January 12, 2009:
“[Attorney William] Cluck said on September 8, this Board voted to deny the request for special permission by a vote of 3 to 2, and the applicant has come back to the Board with a new application. He read from the letter of their new engineer from C&S, dated November 18:
“In conclusion the requirements of Section 305.1.L to grant the specific permission have not been met.” Mr. Cluck said he made this argument to them back in September, and he thinks he made it at the last meeting and he’ll make it one more time.
He said there is no provision in the Floodplain Ordinance to empower this Board to modify or waive any provision for special permission. He said these conditions in effect modify the requirement with respect to the surface area; there has been no demonstration by the applicant that the provision pertaining to surface area in the Floodplain Ordinance is unreasonable or that it causes a unique and undue hardship. He said if this was a storm water management issue, that’s the criteria to modify or waive a provision of the Stormwater Ordinance; they haven’t made that showing in the Floodplain Ordinance, and he submits as a matter of law that you don’t have the power to modify your Ordinance. He said the applicant proposed the 650,000 square foot planned commercial development; they chose the size of the development; there’s no hardship; they could have reduced the impact and reduced the size of the development without having to fill in the floodplain.
“Mr. Cluck said there was a recommendation he believes from C&S and possibly from East Hempfield Township to request comment from the Lancaster County Planning Commission and he asked if that has occurred. He said finally in the submission of November 3, in addition to C&S’ comments, they also address some other issues, and this motion appears to be only for the specific permission under the Floodplain Ordinance, but there’s also a request for conceptual approval of the no harm provision in the Stormwater Management Ordinance, and he asked if that is addressed in any way, shape or form tonight, or is that more appropriately developed at the Stormwater Management portion of development. He said in addition, there is a request for Board approval of the 100-year flood plain study, and he asked if that is part of this motion and is that going to be considered this evening. He said he would urge them to uphold their September 8th vote and if anyone is going to change their vote, we would appreciate a public explanation of what changed their perception from either yes to no or no to yes.”
