Lawrence E. Wood, Wood, Parke & Barnes, West Chester, for appellant at No. 438 and appellee at No. 439.
Robert J. Shenkin, MacElree, Platt & Harvey, Paoli, for appellant at No. 439 and appellee at No. 438.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Roberts, J., filed a concurring opinion. Manderino, J., concurs in the result. Pomeroy, J., filed a dissenting opinion.
In May of 1969, Chesterdale Farms, Inc. (Chesterdale), proposed to erect apartments on a tract of land located in Willistown Township (the township). This proposal was rejected because the tract was zoned RA-1, Residential, which did not permit apartments. Some six months later, Chesterdale again submitted a plan for approval, but it, too, was refused. Chesterdale then applied for a building permit, which was refused. Shortly after that refusal, this court decided Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), in which we held zoning that totally excluded apartments to be unconstitutional. Subsequent to our decision in Girsch, supra, Chesterdale again applied for a building permit and, in addition, filed an action in mandamus, alleging that the township's zoning ordinance was unconstitutional in light of Girsh, and further alleging that it was entitled to a building permit as a matter of right.*fn1 The township thereupon passed a new zoning ordinance which provided an area of eighty acres in the township on which apartments could be built. Chesterdale's land was not in that area.
Chesterdale's application for the building permit was first refused because the new ordinance was pending. Chesterdale then appealed to the zoning hearing board and, after the new ordinance was passed, Chesterdale's request for a permit was denied by the zoning board. Chesterdale appealed to the Court of Common Pleas of Chester County, which upheld the board's decision refusing the permit, but declared the new zoning ordinance to be unconstitutional. Both Chesterdale and the township then appealed to the Commonwealth Court, which, being equally divided, affirmed the decision of the Court of Common Pleas. Both parties then sought allocatur,
Chesterdale seeking to have its permit issued and the township alleging that its new ordinance was constitutional. We granted allocatur because of the importance of the issues involved.
No. 439 January Term, 1973-Appeal of Township of Willistown
Appellant (Willistown Township, argues that the August 25, 1970, amendment of its zoning ordinance, which provided for an eighty acre site for apartment-type dwellings, met this court's mandate in Girsh, supra, and therefore, the zoning ordinance is constitutional. Appellee, Chesterdale, contends that the rezoning of only 80 acres out of 11,589 acres in the township constitutes "tokenism," and is an exclusionary land use restriction not meeting the Girsh standard. We agree with appellee, Chesterdale.
In Girsh, supra, this court, in declaring unconstitutional a total exclusion of apartments from a zoning ordinance, except for a variance procedure, stated:
". . . To be constitutionally sustained, appellee's land-use restriction must be reasonable. If the failure to make allowance in the Township's zoning plan for apartment uses is unreasonable, that restriction does not become any the more reasonable because once in a while, a developer may be able to show the hardship ...