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PennFuture Appeals Zoning Approval of Commercial Development in EV Watershed

by Brigitte Meyer, Staff Attorney

Yesterday, PennFuture filed a notice of land use appeal in the Monroe County Court of Common Pleas challenging the decision of the Paradise Township Board of Supervisors granting conditional use approval for a  resort and shopping center on the banks of two Exceptional Value (EV) streams.  

In short, while we support the development of a resort that actually considers and attempts to minimize its impacts on the surrounding environment, community, and EV waters, we filed this appeal to hold the Township accountable to its own zoning ordinances and the law. Having proactive and thoughtful zoning on the books is one of the most important things municipalities can do to protect us from unreasonable impacts, but those zoning ordinances are only useful if the municipality actually applies them and holds developers accountable to the requirements therein.  

Background – Paradise Township’s Resort Development Overlay District 

In August 2022, New York-based developer JSPA Realty, LLC submitted a zoning application to Paradise Township, Monroe County. The developer seeks to build a resort and shopping center on a 240-acre parcel along the banks of Indian Run and Swiftwater Creek, two of the Poconos’ Exceptional Value streams. The property is located in Paradise Township’s Resort Development Area Overlay District, a special zoning district that permits resorts to be combined with a variety of other types of uses such as shopping centers to create integrated developments called “Master Developments.”  

The overlay district is a well-crafted ordinance that facilitates development that diversifies the Township’s economy and enhances the tourism industry that has attracted people to the Poconos for over 100 years while also conserving existing stream water quality and other natural features. To accomplish this balance between economic development and protection of the environment and the surrounding community, the zoning ordinance requires the various uses within Master Developments to be “integrated” with one another and to meet a variety of other requirements.  

Master Developments like the one proposed by the developer are conditional uses in the Resort Development Overlay District. This means that the Township Board of Supervisors must hold a hearing to decide if the development can be approved. This is an important stage of the land use approval process where the developer must “show its work” and demonstrate how its proposal satisfies all the applicable requirements of the zoning ordinance. A developer who does not demonstrate at the hearing how they will go about satisfying the zoning ordinance requirements is not entitled to approval.    

Township Approved the Proposal Despite Lack of Integration Between Resort and Shopping Center 

PennFuture participated in nine hearings on the proposed development. Based on the evidence presented at these hearings, we concluded that the resort is the type of thoughtful, well-designed development that PennFuture supports in the Poconos. The developer’s plans and testimony show a project that respects the natural landscape and the exceptional value waterways by minimizing impervious coverage and shaping development around the existing contours of the land. The developer also proposes stormwater and wastewater treatment facilities that will return water to the ground without discharging it into the nearby streams. While we will continue to watchdog the DEP permitting of the project to ensure protection of the EV streams, we believe the resort as proposed will allow visitors to experience the natural beauty of the area, as visitors to the Poconos have for decades, without unduly harming it.   

The shopping center is another story. In order to be allowed in the district, the shopping center must be integrated with the resort as one “Master Development.” After hearing all the evidence, we concluded that the resort and shopping center were not “integrated” as required. The Paradise Township Board of Supervisors agreed and found that the developer failed to show how it would comply with this and various other requirements of the zoning ordinance.  

This should have been the end of the story, and the conditional use application should have been denied for these reasons. However, the Board approved the application anyway, believing that the developer could make up for the shortcomings later by complying with certain conditions the Board placed on the approval. 

Municipalities Must Require Developers to Show Their Work Before Development is Approved  

This is why PennFuture appealed the decision. Pennsylvania law is clear: A developer must show how its proposal will comply with the zoning ordinance at the time the application is submitted. This is why conditional use hearings exist—for a developer to demonstrate to the municipality and the public precisely how it will meet the ordinance requirements. A township cannot approve an application based on a developer’s promise to “work things out” in the future.  

It is vital that municipalities follow the rules that govern the land use approval process, especially in our special protection watersheds and other sensitive environmental areas. Paradise Township has taken an important first step by enacting an ordinance that appropriately balances protection of the natural environment and the economic needs of the community. However, good ordinances are ineffective if municipalities do not take the next step and ensure that developers follow them. We know that protecting our Exceptional Value waters means municipalities must require developers to “show their work” before those municipalities approve development, and we will do our best to watchdog local municipalities and hold them accountable should they compromise the health of our environment and communities by failing to follow their own local zoning.      

Support our work protecting local streams and communities by becoming a PennFuture member today! 

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