Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Caesar J. Gorski and Saranne Gorski, his wife, v. The Township of Skippack, No. 73-12364.
Alan E. Boroff, with him Wisler, Pearlstine, Talone, Craig & Garrity, for appellant.
Frank W. Jenkins, with him Jenkins & Acton, P.C. for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by Judge Kramer.
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This is an appeal by Skippack Township (Township), a second class township in Montgomery County, from an order of the Court of Common Pleas of Montgomery County dated June 13, 1974, which sustained an appeal of Caesar J. Gorski and Saranne Gorski (Gorski) and
[ 19 Pa. Commw. Page 348]
directed the Township to issue building permits subject to certain conditions. The order also dismissed a petition to remand, filed by the Township.
In 1973 Gorski owned 111 acres of land located in Skippack Township, all of which was zoned R-1 Residential. The Township's zoning ordinance at that time contained only two residential classifications or usages, i.e., R-1, which permitted only detached single-family dwellings on minimum-size lots of 60,000 square feet, and R-2, which permitted only detached single-family dwellings on minimum-size lots of 30,000 square feet. No other residential uses were permitted under the Township's ordinance. After consultation with architects and other experts in the field of land development, Gorski decided to develop his land for multi-family dwelling units. On June 26, 1973, Gorski filed an application with the Township under the provisions of sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10609.1 and 11004, in which he (1) challenged the validity of the Township's ordinance because it made no provision for apartment usage; (2) presented a curative amendment; and (3) submitted plans and specifications showing the intended usage. Initially, the curative amendment and the plans and specifications included three different types of apartment usages, i.e., high-rise apartments (18.82 acres), high-density apartments (5 acres), and garden apartments (approximately 88 acres).
After negotiations with Township officials, and as a result of a report made by the Montgomery County Planning Commission, Gorski voluntarily withdrew those portions of the application dealing with the high-rise and high-density apartments. Thereafter a hearing was set for August 22, 1973, after proper advertising, the proofs for which were filed at the hearing. The hearing before the Board of Supervisors (Board) of the Township was concluded on that same date. The record discloses that the governing body was specifically informed that the
[ 19 Pa. Commw. Page 349]
MPC (53 P.S. § 11004(3) and (4)) required some action by the Board within 30 days. The Township did nothing. After waiting more than 30 days, Gorski, on October 9, 1973, filed an appeal with the court below.
The court below did not receive any additional testimony or evidence, and, after argument, it filed an opinion and order in which it found generally the facts stated above. Based upon its finding that the Township ordinance made no provisions for apartment usages, the court concluded that under the holding of our Supreme Court in Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), the zoning ordinance of the Township was exclusionary and inherently discriminatory and, therefore, unlawful. The court found "no relationship between the exclusionary zoning scheme of Skippack Township and any valid exercise of governmental police power," and declared the Township zoning ordinance to be unconstitutional. In its order, the lower court sustained the Gorski appeal and directed the Township's building ...