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decided: February 1, 1973.


Appeal from the Order of the Court of Common Pleas of Chester County in case of In the Appeal of Chesterdale Farms, Inc., No. 148 March Term, 1971.


John O. Platt, Jr., with him Thomas R. Kellogg and MacElree, Platt & Harvey, for appellant.

Lawrence E. Wood, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Judge Manderino did not participate. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers disqualified himself and did not participate. Opinion by Judge Mencer in Support of Affirmance. Judge Crumlish, Jr. and Kramer join in this Opinion. Opinion by Judge Wilkinson, in Support of Affirmance in Part and Reversal in Part. President Judge Bowman and Judge Blatt join in this Opinion.

Author: Per Curiam

[ 7 Pa. Commw. Page 456]

Now, February 1, 1973, after argument before the Court en banc, the Court being equally divided, the appeal is thereby rendered non-justiciable and the order of the lower court is hereby affirmed.



Opinion by Judge Mencer in Support of Affirmance:

This is a zoning appeal from a decision of the Court of Common Pleas of Chester County which concerned a request for a building permit to erect and operate 480 apartment units on a 28.4 acre tract on the West Chester Pike. The court held the Willistown Township zoning ordinance, before and after its amendment to provide for apartments by special exception, unconstitutional.

The calendar of significant events in the instant case is as follows:

May 21, 1969. Edward Weingartner, president and principal shareholder of Chesterdale Farms, Inc. (Chesterdale), approached the Willistown Township Planning Commission with a proposal to erect apartments on a tract of ground, presently zoned RA-1 Residence District (two-acre minimum lot size required), on the south side of Pennsylvania Route 3 (West Chester Pike) in the southwest corner of the township. The subject property borders on the line dividing Willistown and Westtown Townships. Adjacent to the subject property to the west is another apartment complex located just across the township line in Westtown.

[ 7 Pa. Commw. Page 457]

Quoting from the minutes of the May 21, 1969, meeting, "It was pointed out to Mr. Weingartner that, at present the township zoning ordinance has no provisions for apartments, and that a new ordinance would be required. It was estimated that this may take as long as one year, and that there was no guarantee that the provisions would be incorporated."

November 19, 1969. Weingartner, this time with two associates, John Clary and an architect, again met with the township Planning Commission. Tentative arrangements for water and sewage disposal were presented. The Chesterdale representatives were again informed that the Commission was considering incorporation of apartments in the zoning ordinance, and, "with this consideration, granting of approval for this project would in the Commission's opinion be highly irregular." After questioning the adequacy of the proposed sewage system for the project, the Commission "suggested that an informal and preliminary meeting be arranged with Chesterdale Farms, Inc. and the [township] Supervisors. The meeting was to be arranged by Chairman [of the Planning Commission] Ed Menig."

December 3, 1969. No meeting between Chesterdale and the Supervisors having been arranged, John Clary, representing Chesterdale, wrote William D. Sherrerd, III, Chairman of the Board of Supervisors of the township, requesting that the meeting suggested by the Planning Commission be held.

December 16, 1969. John O. Platt, Jr., Township Solicitor, at the request of William Sherrerd, by letter informed John Clary that "[i]n the judgment of the supervisors the proposal to amend the zoning ordinance so as to permit 'an apartment complex on the West Chester Pike bordering Westtown Township' would be inconsistent with the best interests of the township at

[ 7 Pa. Commw. Page 458]

    this time. While they appreciate your interest in the township, therefore they see no useful purpose to be served by meeting with you to discuss such a proposal."

January 9, 1970. Without waiting further, Weingartner by appointment met with the township Zoning Officer and presented to him an application for a building permit and certain plans for apartments. He refused to consider, examine, or accept them.

February 13, 1970. The Pennsylvania Supreme Court handed down its decision in Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970).

March 4, 1970. Chesterdale filed an action in mandamus which alleged that the Willistown Zoning Ordinance is "a systematic scheme to exclude apartments from Willistown [Township] and as such is unconstitutional," and further alleged that Chesterdale is "entitled to a building permit as a matter of right." This action in mandamus is still pending.

May 1, 1970. Joseph N. Ewing, Jr., a township supervisor, met with Chesterdale to discuss the apartment proposal and "the issues raised by the Mandamus Action." Ewing "suggested that the Supervisors would want the recommendations of the Planning Commission on the whole question, and that you proceed further with them." (R. 238)

June 1, 1970. Chesterdale again appeared before the township Planning Commission and presented revised plans for apartments. The discussion concerned a general review of sewage, water, drainage, and alternatives for solutions of problems raised.

June 2, 1970. John Clary wrote John O. Platt, Jr., informing him that Chesterdale had met the previous evening with the Planning Commission and had submitted a new set of plans, "a great improvement over the plans that are presently lodged with our Complaint

[ 7 Pa. Commw. Page 459]

[in Mandamus]. It is my understanding now that the planning commission will consider our proposal and make recommendations to the supervisors. I am very much interested in hearing from you concerning the next step to be taken. In the interim we stand ready to meet at any time with the planning commission or supervisors on this matter."

July 3, 1970. A special meeting of the township Board of Supervisors was held to finally consider (and eventually disapprove) an application to build apartments at another location submitted by other developers. A discussion followed concerning the proposed Chesterdale apartments during which John O. Platt, Jr., "stated that he had drafted a decision disapproving the plans which had been presented to the Planning Commission" on June 1, 1970, and Joseph Ewing "stated that he was not aware of any development or subdivision application having been made by Chesterdale since its lawsuit." The minutes of the meeting indicate that the supervisors were under the impression that revised plans had been submitted to the Planning Commission on June 1, 1970, and that that body had requested further information (although the minutes of the June 1, 1970, meeting make no mention of such a request). Therefore the supervisors "concluded that there was no Chesterdale application or request requiring action or answer at this time."

August 10 and 17, 1970. Advertisements were made announcing a public hearing to be conducted by the township supervisors on August 25, 1970, the purpose of the meeting being to consider a proposed amendment to the township zoning ordinance (which was originally adopted in 1961) and zoning map, and particularly the creation of a new OA (Office-Apartment) classification and the rezoning of a section of land along U.S.

[ 7 Pa. Commw. Page 460]

Route 30 (Lancaster Pike) as an OA district to allow for apartment use by special exception.

August 21, 1970. Chesterdale again submitted an application for a building permit to the Zoning Officer who immediately disapproved it explaining that a new zoning ordinance amendment concerning apartments was then pending. An appeal was taken the same day by Chesterdale to the Willistown Township Zoning Hearing Board.

August 25, 1970. The amendment to the zoning ordinance and map as advertised was adopted by the Board of Supervisors after a public hearing.

Four hearings were held before the Zoning Hearing Board in this matter on September 16, October 12, October 27, and November 17, 1970, but, by agreement of the parties, the record was not closed until January 25, 1971. Since the Board had no power to pass on the validity of the township zoning ordinance because of Section 910 of the Pennsylvania Municipalities Planning Code (Planning Code), Act of July 31, 1968, P.L. , No. 247, 53 P.S. § 10910, it properly only decided ". . . all contested questions of interpretation and [made] findings on all relevant issues of fact . . ." despite the fact that Chesterdale had, in its mandamus action, alleged the unconstitutionality of the ordinance then existing, and again raised the issue of the validity of the ordinance as amended August 25, 1970, in its appeal to the Board. In dealing with the appeal, however, the Board (by its opinion dated March 5, 1971) stated, "While the application is unclear as to whether it is an application for a variance, this Board deems that it is, and therefore will resolve the issue as to whether Applicant is entitled to a variance under the evidence presented." The Board then proceeded, using Section 912 of the Planning Code, 53 P.S. § 10912, as a guide, to deny the application for a "variance."

[ 7 Pa. Commw. Page 461]

Chesterdale then appealed to the Court of Common Pleas of Chester County alleging, inter alia, that the township zoning ordinance "is, was, and has been since prior to 1969, unconstitutional as it pertains to construction of apartments." The court, after agreeing with the Board that a variance was not the proper remedy, noted that the ordinance prior to August 25, 1970, had no provision for apartments, found the prior ordinance to be in violation of Girsh Appeal, supra, and then, after an examination of the new Article X of the amended ordinance, concluded that it "is a scheme of zoning that has an exclusionary purpose so far as it affects construction of apartments, and is, therefore, unconstitutional." The township then appealed to this court.

Where, as in this case, the court below took no additional testimony, our function is to determine whether the Board clearly abused its discretion or committed an error of law. Lower Providence Township and Wood v. Ford, 3 Pa. Commonwealth Ct. 380, 283 A.2d 731 (1971), and cases cited therein.

We agree with the lower court that the township zoning ordinance, before and after its amendment, is unconstitutional because, for the reasons which follow, it effectively permits the township to accept only those elements and only that proportion of the population of which it approves.

By discussing the January 9 and August 21, 1970, building permit applications, the Board in its opinion dealt at length with the question of whether the prior ordinance or the ordinance as amended August 25, 1970, governed the appeal to them. It is apparent from the foregoing chronology that since the January 9, 1970, application was never accepted, there could be no disapproval thereof from which an appeal could have been taken to the Board. In addition, the action in mandamus

[ 7 Pa. Commw. Page 462]

    to compel acceptance of that application is still pending. From our examination of the record, the disapproval of the August 21, 1970, application was the first appealable order herein and thus initiated this appeal.

Since the township had advertised on August 10 and 17, 1970, that a public hearing would be held concerning an amendment providing for apartments by special exception, and since Chesterdale filed its application thereafter, the so-called "pending legislation doctrine" demands that the amended ordinance of August 25, 1970, apply to this appeal. Mutzig v. Hatboro Board of Adjustment, 440 Pa. 455, 269 A.2d 694 (1970); Boron Oil Company v. L. C. Kimple, 1 Pa. Commonwealth Ct. 55, 275 A.2d 406 (1970), aff'd, 445 Pa. 327, 284 A.2d 744 (1971); Cameron v. Greensburg, 3 Pa. Commonwealth Ct. 209, 281 A.2d 271 (1971). This is not a case where Chesterdale was still required to obtain further approval from the Board in order to gain a vested right to a building permit -- the applicant challenged the validity of the ordinance directly without first seeking a variance, which was a proper approach.*fn1

[ 7 Pa. Commw. Page 463]

    among scholars. The result of such parochial*fn4 legislation has recently been succinctly described as follows:

"Our cities are presently engaged in a struggle to survive. The vast influx of nonwhites into industrial urban areas, combined with the migration of white middle class families to suburban communities, has left the urban areas with swollen populations and a deflated tax base. In recent years there has been a mounting demand for decent housing from the entire spectrum of urban income groups. However, many of the suburban communities have succeeded, often inadvertently, in preventing low income residents of the metropolitan community from seeking more desirable suburban living through techniques such as large-lot zoning, minimum floor size requirements, and the exclusion of apartments. Thus, low income groups have been confined to the inner city, higher income groups have been attracted

[ 7 Pa. Commw. Page 465]

    to the suburban community, and the result has been economic segregation.

"The great suburban migration coupled with the crowded condition of the cities has caused the introduction of industry into the outlying areas. But even that does not break the pattern of economic segregation, as most of the unskilled and semi-skilled workers must commute long distances from the cities because of the absence of available low cost housing near their jobs. All of this exacerbates economic cleavages in the metropolitan area and has a correspondingly depressant effect on population mobility within that area. Thus, we have an urban core, surrounded by economically homogenous suburbs which, through zoning, pose an effective barrier to socio-economic dispersion throughout the entire region." Comment, Zoning: Closing The Economic Gap, 43 Temp. L.Q. 347, 348 (1970) (Emphasis added.)*fn5

Typically, the basic conflict is "between suburban residents who are seeking continued stability in the form of assurances that any further development of their community will be a continuation of existing low ...

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