Appeal from the Order of the Court of Common Pleas of Chester County in case of Kaufman and Broad, Inc. v. Board of Supervisors of West Whiteland Township, No. 226 March Term, 1974.
Lenard L. Wolffe, with him Stanley A. Uhr, Marc D. Brookman, and Pechner, Sacks, Dorfman, Rosen & Richardson, for appellant.
William H. Lamb, with him John H. Wollman, and Lamb, Windle & McErlane, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers did not participate. Opinion by Judge Mencer.
[ 20 Pa. Commw. Page 118]
This is an appeal by Kaufman and Broad, Inc. (appellant), from an order of the Court of Common Pleas of Chester County dismissing its appeal and sustaining
[ 20 Pa. Commw. Page 119]
the West Whiteland Township Board of Supervisors' denial of a request for a curative amendment to the Township's zoning ordinance.
Appellant's challenge to the validity of the ordinance is based on an allegation that it is exclusionary and therefore invalid "for failing to provide for townhouse units, fourplex and condominium units." 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), appellant's challenge before the Board was accompanied by plans and other detailed material describing the intended use of the land in question as a possible Planned Residential Development (PRD), consisting of townhouses, fourplex units, and common recreational facilities, and by a proposed curative amendment to the ordinance containing extensive provisions for PRDs.*fn1
After two hearings, the Board refused to accept either the plans or the curative amendment. The lower court affirmed, finding that townhouses did not represent a unique and distinct class of use that requires separate zoning provisions, that a townhouse is but one form of high density use, and that the ordinance already provided for high density uses.
Appellant then appealed to this Court, contending that the ordinance was unconstitutionally exclusionary
[ 20 Pa. Commw. Page 120]
and that the proposed PRD amendment was a proper curative amendment under the circumstances. However, prior to oral argument, the Township stipulated, after considering our recent ruling in Camp Hill Development Co., Inc. v. Zoning Board of Adjustment of the Borough of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974), that the ordinance was unconstitutionally exclusionary when applied to townhouses. See also Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975); Northampton Township v. G.R.S.H., Inc., 14 Pa. Commonwealth Ct. 364, 322 A.2d 758 (1974).
There was no stipulation concerning the issue of the exclusion of fourplex and condominium units in the Township. However, condominiums are not uses but are merely a method of expressing realty ownership. Condominium-type ownership is statutorily provided for under the Unit Property Act, Act of July 3, 1963, P.L. 196, as amended, 68 P.S. § 700.101 et seq. This Act is inclusive enough to include townhouse uses as possibilities for condominium ownership, but a condominium cannot be a use itself.*fn2 Therefore, the subject of condominiums is not a ...