TOWNSHIP OF LOWER MERION

Building & Planning Department

MEMORANDUM

TO: Douglas S. Cleland, Township Manager

FROM: Robert E. Duncan, Director of Building & Planning
SUBJECT: Farmers Market Ordinance
DATE: February 12, 2010

A revised draft of the Farmers Market ordinance has been prepared and will be placed on the
February 17th special B&P Committee meeting agenda for authorization to advertise a public
hearing and consideration for adoption by the Board in late March or early April. The ordinance
has been revised to address some of the concerns about the limited application of the Farmers
Market use.

The revisions from the previous draft are listed below:

• Farmers Market definition has been revised to require the products to be grown within
150 miles of the site of the Market.

• 155-31 B (1) has been revised to allow another use to operate at the same time as the
Market if the required parking for both uses are provided on the lot.

• 155-31 B (7) has been revised to limit the Farmers Market use to four hours, one day per
week with two additional hours for set up and clean up.

• 155-31 B (8) has been revised to require on street parking only on the side of the street
the Farmers Market is operating. This provides the Township with the ability to establish
limitations on parking across the street to address resident parking concerns.

• A new Section #3 has been added to this ordinance. In addition to permitting the Farmers
Market use by special exception in the R-4 through R-7 zoning districts, the Farmers
Market use will be permitted as a matter of right in the ASDD-1, C-1, C-2, and
Manufacturing Districts. This will permit this use on many commercially zoned
properties throughout the Township.

If you or any Board members have any questions prior to Wednesday nights meeting, please give
me a call.

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 An Ordinance

No. ______

AN ORDINANCE, Amending The Code Of The Township Of Lower Merion,

Chapter 155, Zoning, By Adding Farmers Market As A Permitted Use To the R4
Residence Districts, R5 Residence Districts, R6 Residence Districts, R6A Residence
Districts, And R7 Residence Districts; To Provide A Definition For The Term
Farmers Market; To Establish Criteria For The Use Of Farmers Markets In
Applicable Residence Districts.

The Board of Commissioners of the Township of Lower Merion Hereby ordains:

Section 1. The Code of the Township of Lower Merion, Chapter 155, entitled Zoning, Article
II, Definitions, § 155-4. Terms defined, subsection B shall be amended by the addition in
alphabetical order the following word:

§ 155-4. Words and terms defined.

*******

B. Unless otherwise expressly stated, the following words and phrases shall be
construed throughout this chapter to have the meanings indicated in this article:

*******

FARMERS’ MARKET - A Producer-Only Farmers’ Market where only locally produced

Food and Agricultural Products are sold.

(a) “Food and Agricultural Products” means vegetables, fruits, eggs,

dairy products (milk, cheeses, yogurt, ice cream), meats, grains,
baked goods, juices, other edible food stuffs (such as chocolates,
honey, jams, salsa and candies), flowers and other fresh or dried
plant materials.

(b)“Locally produced Food and Agricultural Products” means Food and

Agricultural Products raised, grown and/or produced no more than
150 miles from the site of the Farmers’ Market.

(c) “Producer-Only Farmers’ Market” means that the entity or person

selling the Food and Agricultural Products must raise, grow and/or

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 produce the Locally produced Food and Agricultural Products that
they are selling.

*******

Section 2. The Code of the Township of Lower Merion, Chapter 155, entitled Zoning, Article
IX, R4 Residence Districts, § 155-31. Use regulations, shall be amended by the addition of a new
subsection B to provide as follows:

§ 155-31. Use regulations.

A building may be erected or used and a lot may be used or occupied for any of the
following purposes and no other:

*******

B. Farmers’ market, by special exception, subject to the following conditions:

(1) If the lot is used for any other purpose, the Farmers’ Market use may only
occur if the applicant can demonstrate that there is sufficient parking for
the Farmers’ Market use and any other use that will operate the same time
as the Farmers Market.re is no other use occurring at the same time.

(2) Lot area: The minimum lot area required for a Farmers’ Market use is 1.25
acres.

(3) Parking. A minimum of 50 off-street parking spaces for customers shall

be available on the lot, in addition to the parking spaces required for
vendors and their employees.

(4) Ingress and egress. A minimum of two curb cuts and two points of
vehicular ingress and egress shall be provided.

(5) Setbacks. Where a property is used as a Farmers’ Market there shall be a

minimum 30 foot setback between the Farmers’ Market use and the side
and rear property line.

(6) Minimum lot space provided area per vendor. A minimum of 500 square
feet of lot areaspace shall be provided for each per vendor. shall be
provided.

(7) Operation. Operation of the Farmers’ Market shall be limited to a

maximum of one day per week for six hours. Sales to the public may only
occur for a maximum of four hours between the hours of 10:00 AM and
7:00 PM. Producers may set up and clean up for no more than an hour

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 before sales commence and an hour after sales conclude.

(8) Minimum paved street width. A Farmers’ Market shall be located on a lot
fronting on one or more streets with a minimum 40 foot paved width. The
sole means of ingress and egress to the parking required for the Farmers’
Market shall be from such street or streets. In residential zoning districts,
Oon street parking shall be available on the same both sides of the 40 foot
wide street(s) providing ingress and egress toas the Farmers’ Market.

(9) The Farmers’ Market use shall be setback a minimum of 20’ from the curb
line.

Add a Framers Market use by right in ASDD-1, ASDD-2, C-1, C-2 and M Districts, subject to
the following:

(1) If the lot is used for any other purpose, the Farmers’ Market use may
only occur if the applicant can demonstrate that there is sufficient parking
for the Farmers’ Market use and any other use that will operate the same
time as the Farmers Market.

(2) Parking. A minimum of 50 off-street parking spaces for customers

shall be available on the lot, in addition to the parking spaces required for
vendors and their employees

(3) Operation of the Farmers’ Market shall be limited to a maximum of

two days per week for six hours. Sales to the public may only occur for a
maximum of four hours between the hours of 10:00 AM and 7:00 PM.
Producers may set up and clean up for no more than an hour before sales
commence and an hour after sales conclude

Section 3. Nothing in this Ordinance or in Chapters 155 of the Code of the Township of Lower
Merion, as hereby amended, shall be construed to affect any suit or proceedings in any Court,
any rights acquired or liability incurred, any permit issued, or any cause or causes of action
existing under the said Chapter 155 prior to the adoption of this amendment.

Section 4. The provisions of this Ordinance are severable, and if any section, sentence, clause,
part or provision thereof shall be held illegal, invalid, or unconstitutional by any Court of
competent jurisdiction, such decision of this court shall not affect or impair the remaining
sections, sentences, clauses, parts or provisions of this ordinance. It is hereby declared to be the
intent of the Board that this ordinance would have been adopted if such illegal, invalid, or
unconstitutional section, sentence, clause, part, or provision had not been included herein.

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Section 5. This Ordinance shall take affect and be in force from and after its approval as
required by law.

Approved by the Board this day of , 2010.

BOARD OF COMMISSIONERS OF THE

TOWNSHIP OF LOWER MERION

______________________________
Bruce D. Reed, President

ATTEST:

___________________________________
Eileen R. Trainer, Secretary

2/17/2010 5
 February 12, 2010

Douglas S. Cleland, Township

Manager
Township of Lower Merion
75 E. Lancaster Avenue
Ardmore, PA 19003

Re: Re: Proposed Farmer's Market Ordinance

Dear Doug:

You asked for my opinion whether the proposed Farmer’s Market Ordinance if passed
would constitute illegal “spot zoning.” It is my opinion that it would not.

The ordinance adds Farmers’ Markets as a use permitted by special exception in the R-4,
R-5, R-6, R-6A and R-7 Residence Districts. In its amended form it also adds Farmers’ Markets
as a use permitted in the C1, C2, ASDD1, ASDD2 and M Districts. The ordinance adds a
definition of Farmers’ Market as a producer only market selling only locally produced food and
agricultural products. In the Residence Districts the use requires a minimum lot area of 1.25
acres accessible through two means of access from a public street having a minimum paving
width of 40 feet and on-street parking within the same block and on the same side of the street as
the Farmers’ Market. Operation of the market is permitted one day a week (2 days in the non-
residence districts) for a period of 6 hours, only four of which can be devoted to retail sales.
There are set back requirements in the residence districts and a minimum of 50 off street parking
spaces must be provided for customers. Parking must also be provided for the vendors and their
employees. While use of the underlying property for some other purpose is permitted, the other
use cannot be taking place during the hours of operation of the Farmers’ Market.

Because of the requirements imposed on the use, particularly the requirement that the lot
on which the use takes place must have a 40 foot paved width and provide parking in the same
block and on the side of the street where the Farmers’ Market operates, there are only a limited
number of residentially zoned lots that would meet these criteria. For this reason, concern was
raised that the ordinance constitutes invalid “spot zoning.” However, where a zoning provision
promotes a legitimate governmental purpose, has general applicability, and is not enacted to
prevent a proposed activity (but rather to enable it), courts will not invalidate an ordinance on the
theory of spot assessment or its cousin, the theory of special legislation.

There is no doubt that promoting market places is a legitimate governmental purpose for a First
Class Township. The First Class Township Code at §1502 (XXIV) (53 P.S. 56524) specifically
empowers townships

To regulate markets and peddling, whether for individual use or for resale; to
provide and enforce regulations for markets and market houses, whether for
individual use or for sale or resale; and to acquire and own ground for and to

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 erect, establish, and maintain market houses and market places, for which latter
purposes, parts of any streets, highways or sidewalks may be temporarily used as
specified by the township commissioners; to contract with any person, firm, or
corporation for the erection, maintenance, and regulation of market houses and
market places, on such terms and conditions and in such manner as the board of
commissioners may prescribe; to provide for the payment of the cost and expense
of providing markets and market houses, either in whole or in part, from township
funds; and to levy and collect a license tax from every person who may be
authorized to occupy any portion of said market houses or places.

Government therefore has a prescribed role in providing a location for the sale of produce to
residents of the community, both for the benefit of such residents, and for the benefit of farmers
and others engaged in the production of food and agricultural products for general consumption.

Pennsylvania courts have created the doctrine of “spot zoning” to invalidate certain
zoning ordinances which violate the general principal that zoning restrictions should have
general applicability within designated districts. The Commonwealth Court in Clawson v.
Harborcreek Township Zoning Hearing Board, 9 Pa.Cmwlth.124, 304 A.2d 184 (1973) observed
that the doctrine of spot zoning was apparently first established in Pennsylvania by Huebner v.
Pennsylvania Saving Fund Society, 127 Pa.Super. 28, 192 A. 139 (1937), and it has been
explained in Putney v. Abington Township, 176 Pa.Super. 463, 108 A.2d 134 (1954), as follows:
The legislative intention in authorizing comprehensive zoning is reasonable
uniformity within districts having in fact the same general characteristics and not
the marking off, for peculiar uses or restrictions of small districts essentially
similar to the general area in which they are situated. Accordingly, an ordinance
cannot create an ‘island’ of more or less restricted use within a district zoned for a
different use or uses, where there are no differentiating relevant factors between
the ‘island’ and the district. A singling out of one lot or a small area for different
treatment from that accorded to similar surrounding land indistinguishable from it
in character, for the economic benefit of the owner of that lot or to his economic
detriment, is invalid as ‘spot’zoning” 176 Pa.Super. at 474, 108 A.2d at 140.

Generally speaking, spot zoning is the arbitrary and unreasonable classification

and zoning of a small parcel of land. This small parcel of land is usually set apart
or carved out of a surrounding or a large neighboring tract, with no reasonable
justification for the differential zoning. Cleaver v. Board of Adjustment, 414 Pa.
367, 379, 200 A.2d 408, 415 (1964).

However, the doctrine of spot zoning only finds applicability where a property is
rezoned. It is not applied where an ordinance expands the lawful uses which can take place in a
particular zoning district.
In Klein v. Council of City of Pittsburgh 164 Pa.Cmwlth. 521, 643 A.2d 1107
(Pa.Cmwlth., 1994) the court was asked to rule on the validity of a zoning ordinance amendment
(Ordinance 40) that permitted medical use helistops by conditional use in six residential zoning
districts in Pittsburgh. The restrictions on the helistops use made it applicable only to hospital

2/17/2010 7
properties within these residence districts. Without differentiating between the doctrines of “spot
zoning” and “special legislation”, the Commonwealth Court held the ordinance was valid, and
adopted the following language from the lower court’s decision:
[Objectors'] argument that Ordinance 40 is invalid as special legislation likewise
cannot stand. In order to be considered special legislation, or spot zoning, a
zoning ordinance must be ‘unjustly discriminatory, arbitrary, unreasonable, and
confiscatory in its application, in that it [is] directly aimed at [a] particular piece
of property.’ Shapiro v. Zoning Board of Adjustment, 377 Pa. 621, 105 A.2d 299
(1954).

Ordinance 40 permits medical private use helistops in conjunction with hospitals

as a conditional use in six different zoning districts. It does not rezone [Shadyside
Hospital's] property nor single it out for preferential treatment among other area
hospitals. In fact Ordinance 40 confers no benefit on Shadyside Hospital that is
not similarly bestowed on any other city hospital, many of which have helicopter
landing facilities predating Ordinance 40. Another city hospital, St. Margaret's,
has already obtained conditional use approval for a helistop pursuant to Ordinance
40.

Nor is Ordinance 40 rendered special legislation by the fact that [the hospital]
lobbied strenuously for its passage. Legislation must stand or fall on its own
terms: the state of mind of its drafters or enactors is not relevant to the issue of
validity. Nichols v. City of Corry, 53 Pa.Cmwlth. 248, 417 A.2d 836 (1980).

The Commonwealth Court has just handed down a decision which closely
parallels the Farmers’ Market ordinance. In Plaxton v. Lycoming County Zoning Hearing Board,
__ A.2d __, 2009 WL 4432373 (Pa.Cmwlth, 2009)(Reargument denied 1/21/10), the Court
considered a substantive validity challenge to county zoning ordinance amendments which
permitted, by right, wind energy facilities in the Agricultural, Countryside and RP zoning
districts in the county. The court first noted that before a reviewing tribunal may declare a
zoning ordinance unconstitutional, the challenging party must clearly establish the provisions of
the ordinance are arbitrary and unreasonable. The court then held that the harvesting of wind as
a natural resource in order to convert it to energy as a source of power to provide electricity to
the public serves a legitimate governmental purpose in that it promotes public health, safety or
welfare. Against the spot zoning argument that the purpose of the ordinance was to benefit one
party (Laurel Hill) by providing a specific use of that party’s land, the court held that the state of
mind of the legislative body in enacting the zoning amendment is irrelevant to a determination of
its validity. The court then noted that Laurel Hill’s property was not rezoned in a manner so as
to subject it to unjustifiably different treatment from similar surrounding land. Indeed, the
ordinance amendments did not rezone the property at issue at all; rather, the effect of the
amendments was simply to permit, by right, wind energy facilities in all of the County's
Agricultural, Countryside and RP zoning districts. The Court then upheld the ordinance against
a “spot zoning” challenge.
The doctrine of “special legislation” is frequently referenced in the same phrase
with the doctrine of “spot zoning.” An ordinance is invalid on the basis of special legislation if it
is unjustly discriminatory, arbitrary, unreasonable and confiscatory in its application to a

2/17/2010 8
particular or specific piece of property, and if it is adopted to prevent otherwise permissible uses
on a particular parcel of land. In Appeal of Apgar From Decision of Bd. of Comm'rs of
Manheim Twp., 661 A.2d 445, 448 (Pa.Cmwlth.1995) property owners challenged an
amendatory zoning ordinance that permitted a public utility use on adjacent property. The court
noted that in deciding the validity of a zoning ordinance, the courts have consistently limited the
application of the theory of special legislation to situations where amendatory zoning ordinances
were adopted to deprive the applicant of vested interests in permits issued before the amendment
or to prevent a permitted use proposed in the pending application. Thus, an amendatory zoning
ordinance constitutes special legislation only where it is enacted to prevent a lawful use of land
permitted under the existing ordinance.

The court in Plaxton, supra., reaffirmed the holding in Apgar, that where zoning
ordinance amendments permit a use by right in several zoning districts where that use was not
specifically allowed under the prior ordinance, the ordinance amendments have no confiscatory
application. Thus, Objectors' assertions that the ordinance amendments constituted special
legislation were rejected.
Clearly the ordinance provisions allowing a Farmers’ Market in residential and
commercial zoning districts one or two days a week are not confiscatory. To the contrary, the
ordinance allows residents access to fresh, locally grown produce near their homes, and is thus
complimentary to residential uses. The governmental purpose in enacting the ordinance cannot
be questioned. No properties are being rezoned, thus the “spot zoning” argument fails. Because
the ordinance permits a use by right, as opposed to preventing a lawful use of land, the special
legislation argument likewise fails. Therefore, in my opinion, the ordinance passes constitutional
muster.

Very truly yours,

Gilbert P. High, Jr.

GPH/je

cc: Robert Duncan, Director Building and Planning Department

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