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MARVIN D. ELLICK v. BOARD SUPERVISORS WORCESTER TOWNSHIP (02/11/75)

decided: February 11, 1975.

MARVIN D. ELLICK, APPELLANT,
v.
BOARD OF SUPERVISORS OF WORCESTER TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Marvin D. Ellick v. Board of Supervisors of Worcester Township, No. 73-13082.

COUNSEL

Arsen Kashkashian, Jr., for appellant.

J. Peirce Anderson, with him Bean, DeAngelis, Kaufman & Kane, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 17 Pa. Commw. Page 406]

This is an appeal filed by Marvin D. Ellick (Ellick) from an order of the Court of Common Pleas of Montgomery County, dated January 30, 1974. The order dismissed Ellick's appeal and, in effect, affirmed the rejection by the Worcester Township Board of Supervisors (Board) of Ellick's "Challenge to the Validity of the Zoning Ordinance of Worcester Township and Request For Curative Amendment" (hereinafter "challenge").

Ellick is the owner of a 40-acre tract of land located in Worcester Township (Township). Ellick's land is currently zoned "AGR-agricultural," which limits non-agricultural uses to lots of 60,000 square feet. Ellick desires to build 280 townhouses on his property. On April 14, 1973, Ellick filed his challenge with the Board pursuant to section 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(1)(b).*fn1 The challenge, among other things, alleges that "[t]own houses for sale are excluded from every portion of the Township of Worcester." Another allegation of the challenge is that there is a need for moderately priced dwellings which can be best provided by cluster-type townhouses such as those proposed by Ellick. The challenge includes a request for a curative amendment which would amend the Township's zoning ordinance so as to permit the construction of Ellick's proposed townhouses.

A hearing on Ellick's challenge was held before the Board on July 30, 1973. There was an unavoidable delay in transcribing the notes of testimony, and the parties

[ 17 Pa. Commw. Page 407]

    agreed that the Board would have 30 days from the receipt of the transcript to make its adjudication. The Board received the transcript on September 20, 1973, but failed to act within the 30-day period prescribed by section 1004(4)(iii) of the MPC, 53 P.S. § 11004(4)(iii), and, therefore, the challenge was deemed to have been denied. Ellick filed a timely appeal to the court below on October 23, 1973. The lower court neither took additional testimony nor received additional evidence, and on January 30, 1974, it dismissed Ellick's appeal. Following Ellick's appeal to this Court, the lower court on April 1, 1974, filed an opinion in support of its January 30, 1974 order. The court decided that the ordinance does not totally prohibit townhouses because they could be built as "apartment houses" in R-150 Residential districts.

In his appeal to this Court, Ellick argues that the Township zoning ordinance is invalid because it unconstitutionally prohibits townhouses anywhere in the Township. See Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970). He contends that since he presented proof that the ordinance prohibits townhouses, the burden was on the Board to prove that the prohibition is for a legitimate public purpose and bears a relationship to the public health, safety, morals and general welfare. See Beaver Gasoline Company v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971). He also argues that the present zoning restrictions applicable to his property are unreasonable and confiscatory. By contrast, the Township argues that its ordinance does not prohibit townhouses because they are a permitted use as "apartment houses" in R-150 Residential districts. The Township argues that its ordinance regulates the use rather than the ownership of property, and that under the ordinance Ellick could build townhouses in an R-150 Residential district and sell them as condominiums or in fee simple.

[ 17 Pa. Commw. Page 408]

The instant case is the first time*fn2 this Court has dealt with a challenge to the validity of a zoning ordinance pursuant to section 1004(1)(b) of the MPC, as amended in 1972, 53 P.S. § 11004(1)(b). The present section 1004*fn3

[ 17 Pa. Commw. Page 409]

    was added to the MPC by the 1972 amendments which effected considerable change, both procedurally and substantively, in the MPC. Because the 1972 amendments are somewhat complex, and we notice an increasing number of appeals related thereto, we believe it will be helpful to all concerned to set forth some guidelines to aid in the disposition of the type of case now facing us.

[ 17 Pa. Commw. Page 410]

Initially we believe it important to note that the general principles of law relating to challenges to zoning ordinances have not changed. A zoning ordinance is still presumed valid and constitutional, and anyone challenging an ordinance has a heavy burden of proving otherwise. See Surrick v. Zoning Hearing Board of the Township of Upper Providence, 11 Pa. Commonwealth Ct. 607, 314 A.2d 565 (1974); Hodge v. Zoning Hearing Board of West Bradford Township, 11 Pa. Commonwealth Ct. 311, 312 A.2d 813 (1973). When an individual challenging a zoning ordinance proves a total prohibition of an otherwise lawful use, the burden shifts to the municipality to prove that such prohibition bears a relationship to the public health, safety, morals and general welfare. See Beaver Gasoline Company, supra; Amerada Hess Corporation v. Zoning Board of Adjustment, 11 Pa. Commonwealth Ct. 115, 313 A.2d 787 (1973). The law concerning variances and special exceptions has not changed.

Prior to the 1972 amendments, a landowner could challenge the validity of a zoning ordinance either at the time of its passage or later by filing an application for a zoning permit, and the ...


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