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DUBLIN PROPERTIES v. BOARD COMMISSIONERS UPPER DUBLIN TOWNSHIP (08/07/75)

decided: August 7, 1975.

DUBLIN PROPERTIES, A LIMITED PARTNERSHIP, APPELLANT,
v.
THE BOARD OF COMMISSIONERS OF UPPER DUBLIN TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Dublin Properties, a limited partnership, v. The Board of Commissioners of Upper Dublin Township, No. 74-6950.

COUNSEL

Marvin Allanoff, for appellant.

Raymond Jenkins, with him Mabel D. Sellers, and Jenkins & Acton, P.C., for appellee.

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

Author: Kramer

[ 21 Pa. Commw. Page 56]

This is an appeal by Dublin Properties, a limited partnership, (Dublin) from an order of the Court of Common Pleas of Montgomery County. The Court affirmed a decision of the Board of Commissioners of Upper Dublin Township which had rejected a challenge to the validity of the Township's zoning ordinance and a request for a curative amendment filed by Dublin under section 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53, P.S. ยง 11004(1)(b). The issue in this case is whether the Township's zoning ordinance unconstitutionally fails to provide for townhouse usage. We conclude that the ordinance is unconstitutional and therefore reverse.

Dublin owns approximately 22 acres of land in an area of the Township zoned "A-Residential." Under this zoning classification, single-family dwellings are permitted on lots containing a minimum of 26,000 square feet. On February 14, 1974, Dublin filed its challenge to the validity of the Township's zoning ordinance.*fn1 The challenge alleged that the ordinance was unconstitutional because it did not provide for townhouse usage anywhere in the Township.*fn2 The challenge was accompanied by a

[ 21 Pa. Commw. Page 57]

    proposed curative amendment and by plans as required by section 1004 of the MPC. Dublin proposes to build 132 single-family, two-story, attached dwellings, at a density of six units per acre. These townhouses would be grouped in rows of three to ten units, and would be sold individually in fee simple for approximately $45,000 each. Dublin's plans provide for open areas and other supporting facilities separately held and maintained under a trust arrangement for the common usage and benefit of the individual owners.*fn3

After proper publication, a hearing was held before the Board of Commissioners and, thereafter, the Board issued its decision denying Dublin's application. The matter was appealed to the court below, which did not receive any additional testimony or evidence. The court noted that the Township had permitted townhouses to be built in AH-Apartment House Districts, and, therefore, concluded that the Township did not exclude townhouses.

The Board did not make specific findings of fact and, therefore, we are required to review the decision of the lower court in order to determine if it abused its discretion or committed an error of law. Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975). The lower court failed to set forth specific findings of fact and, therefore, in order to determine the factual basis for its decision, we have been forced to deduce findings from its opinion. Specific findings of fact, by either the Board or the lower court, would be quite helpful on appeal.

[ 21 Pa. Commw. Page 58]

A zoning ordinance which prohibits townhouse development is unconstitutional. Ellick, supra, Camp Hill Development Co., Inc. v. Zoning Board of Adjustment, Borough of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974). The Township's ordinance is very similar to that ...


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