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decided: May 16, 1975.


Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Appeal of Ralph W. Connelly, Inc., No. 248 July Term, 1973.


William J. Taylor, with him Richard J. Sabat, Franklin L. Gordon, Gordon & Ashton, and, of counsel, Morgan, Lewis & Brockius, for appellant.

John E. Good, for appellee.

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

Author: Kramer

[ 19 Pa. Commw. Page 111]

This is an appeal filed by Highland Township (Township) from an order of the Court of Common Pleas of Chester County, dated October 18, 1974, which declared Article II, Section 202.1 of the Township ordinance, requiring a minimum lot area of three acres for a single-family dwelling in a Rural-Agricultural District, to be unconstitutional as applied to the property of Ralph W. Connelly, Inc., and which stated that the lower court would retain jurisdiction for the purpose of issuing such supplementary orders as shall be from time to time appropriate upon the submission of plans, applications for permits and other relevant materials by Ralph W. Connelly, Inc.

This case commenced with the filing on March 28, 1973 of a letter signed by counsel on behalf of Ralph Connelly et ux. (Connelly)*fn1 in which they challenged the validity of the Township's zoning ordinance, alleging that the requirement of a three-acre minimum lot with a 300 foot width for each single-family dwelling in a R-A (Rural-Agricultural) zone was invalid. The letter was also accompanied by a proposed curative amendment.

[ 19 Pa. Commw. Page 112]

Connelly owns a tract of land consisting of about 86 acres, 52 acres of which are situated in Highland Township. Connelly, who was the main witness, is not the usual landowner involved in this type of case; he was at the time of the hearing a member of the Township's Planning Commission and had been a member of the same from 1965, when both the comprehensive plan and the zoning ordinance implementing it were adopted. The Township contains 11,340 acres in area and is primarily rural in character. The Township is approximately 45 miles from Philadelphia and is not considered a suburb of any large city. No major highway connects the Township to any large city. In 1965 about 92% of the Township's land was being used for agricultural purposes and the balance for residential, commercial, industrial and semipublic purposes. The zoning ordinance, however, designated 69.5% of the Township as Rural-Agricultural with a three-acre minimum for single-family dwellings, 19% as Rural-Residential with a one-acre minimum, 7.5% as Residential with area requirements ranging from 12,000 to 33,000 square feet depending upon the availability of public water and sanitary sewer facilities, and the remaining 4% as Commercial and Industrial. Connelly's 52-acre tract of land is located entirely in the Rural-Agricultural District which requires both a three-acre minimum lot area and a minimum lot width of 300 feet.*fn2

In any event, Connelly filed his challenge under the provisions of section 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11004. The Township, therefore, under the provisions of said Act, set the matter down for hearing and duly advertised same. At the hearing,

[ 19 Pa. Commw. Page 113]

Connelly and one other witness were called to testify. Connelly's testimony takes up just nine pages in the record. Connelly merely (1) described the property's acreage and topography; (2) stated his intention to subdivide the land into at least one-acre lots for the purpose of erecting single-family dwellings; (3) professed ignorance of the soil type; (4) acknowledged lack of public sewers; (5) acknowledged full understanding of the zoning ordinance of the Township and state regulations controlling housing developments; (6) disclosed his membership on the Planning Commission; and (7) alleged that the three-acre minimum lot size was intended to keep the area rural. The other witness called was a supervisor of the Township, who offered no testimony pertinent to the issues in this case. The remainder of the testimony was by individual citizens, some for and some against the Connelly proposal. The zoning ordinance and the comprehensive plan were made a part of the record. A letter from the Township's Planning Commission noting its rejection of Connelly's request was also made part of the record. It is important to note that neither at the time of the challenge nor during the hearing did Connelly present any plans or other materials indicating the proposed use he intended to make of the subject property.

Following the hearing the governing body of the Township, in a written adjudication, denied Connelly's request for a curative amendment. Connelly appealed to the court below which did not receive any additional testimony or evidence. After argument, the lower court, in a well-reasoned opinion, concluded, based upon the pronouncements of our Supreme Court in Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970) and National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965), that the three-acre ...

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