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GIRSH APPEAL (02/13/70)

decided: February 13, 1970.


Appeal from order of Court of Common Pleas of Delaware County, No. 8517 of 1967, in re appeal of Joseph Girsh from decision of Board of Adjustment of Nether Providence Township.


Louis F. Floge, with him Arlin M. Adams, and Schnader, Harrison, Segal & Lewis, for appellant.

John R. McConnell, with him E. Barclay Cale, Jr., John W. Wellman, and Morgan, Lewis & Bockius, and Chadwick, Petrikin, Ginsburg and Wellman, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Jones. Mr. Justice Cohen and Mr. Justice Pomeroy join in this dissenting opinion.

Author: Roberts

[ 437 Pa. Page 239]

By agreement dated July 13, 1964, appellant contracted to purchase a 17 1/2 acre tract of land, presently zoned R-1 Residential,*fn1 in Nether Providence Township, Delaware County. Appellant agreed to pay a minimum of $110,000 (later changed by agreement to $120,000) for the property. He further agreed to request the Township Board of Commissioners to change the R-1 Residential zoning classification so that a high-rise apartment could be built on the property and to pay $140,000 if this request were granted.

Nether Providence is a first-class township with a population of almost 13,000 persons and an area of 4.64 square miles. Approximately 75% of the Township is zoned either R-1 or R-2 Residential, which permit the construction of single-family dwelling units on areas not less than 20,000 and 14,000 square feet, respectively. Multi-unit apartment buildings, although not explicitly prohibited, are not provided for in the ordinance. The Township contains the customary commercial and industrial districts, as well as two areas where apartments have been permitted and constructed only after variances were secured.

[ 437 Pa. Page 240]

After the Board refused to amend the zoning ordinance, appellant sought a building permit to construct two nine-story luxury apartments, each containing 280 units.*fn2 The permit was refused since the R-1 Residential classification does not permit multiple dwellings. Appellant appealed to the Zoning Board of Adjustment and announced that he would attack the constitutionality of the zoning ordinance in lieu of seeking a variance. The Zoning Board sustained the ordinance and denied relief. The Court of Common Pleas of Delaware County affirmed, and appellant took this appeal. We hold that the failure of appellee-township's zoning scheme to provide for apartments is unconstitutional and reverse the decree of the court below.

Initially, it is plain that appellee's zoning ordinance indeed makes no provision for apartment uses. Appellee argues that nonetheless apartments are not explicitly prohibited by the zoning ordinance. Appellee reasons that although only single-family residential uses are provided for, nowhere does the ordinance say that there shall be no apartments. In theory, an apartment use by variance is available, and appellee urges that this case thus is different from prior cases in which we severely questioned zoning schemes that did not allow given uses in an entire municipality. See Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967); Ammon R. Smith Auto Co. Appeal, 423 Pa. 493, 223 A.2d 683 (1966); Norate Corp. v. Zoning Board of Adjustment, 417 Pa. 397, 207 A.2d 890 (1965).

Appellee's argument, although perhaps initially appealing, cannot withstand analysis. It is settled law that a variance is available only on narrow grounds, i.e., "where the property is subjected to an unnecessary

[ 437 Pa. Page 241]

    hardship, unique or peculiar to itself, and where the grant thereof will not be contrary to the public interest. The reasons to justify the granting of a variance must be 'substantial, serious and compelling.'" Poster Advertising Company, Inc. v. Zoning Board of Adjustment, 408 Pa. 248, 251, 182 A.2d 521, 523 (1962). In light of this standard, appellee's land-use restriction in the case before us cannot be upheld against constitutional attack because of the possibility that an occasional property owner may carry the heavy burden of proving sufficient hardship to receive a variance. To be constitutionally sustained, appellee's land-use restriction must be reasonable. If the failure to make allowance in the Township's zoning plan for apartment uses is unreasonable, that restriction does not become any the more reasonable because once in a while, a developer may be able to show the hardship necessary to sustain a petition for a variance.*fn3 At least for the purposes of this case, the failure to provide for apartments anywhere within the Township must be viewed as the legal equivalent of an explicit total prohibition of apartment houses in the zoning ordinance.

[ 437 Pa. Page 242]

Were we to accept appellee's argument, we would encourage the Township in effect to spot-zone a given use on variance-hardship grounds. This approach distorts the question before us, which is whether appellee must provide for apartment living as part of its plan of development. Cf. Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A.2d 7 (1960).

By emphasizing the possibility that a given landowner could obtain a variance, the Township overlooks the broader question that is presented by this case. In refusing to allow apartment development as part of its zoning scheme, appellee has in effect decided to zone out the people who would be able to live in the Township if apartments were available. Cf. National Land and Investment Co. v. Easttown Twp. Board of Adjustment, 419 Pa. 504, 532, 215 A.2d 597, 612 (1965): "The question posed is whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live. We have concluded not. A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration of public services and facilities can not be held valid."

We emphasize that we are not here faced with the question whether we can compel appellee to zone all of its land to permit apartment development, since this is a case where nowhere in the Township are apartments permitted. Instead, we are guided by the reasoning that controlled in Exton Quarries, supra. We there stated that "The constitutionality of zoning ordinances which totally prohibit legitimate businesses . . . from an entire community should be regarded with particular circumspection; for unlike the ...

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