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DANIEL F. DECARO AND SHIRLEY J. DECARO v. WASHINGTON TOWNSHIP (09/23/75)

decided: September 23, 1975.

DANIEL F. DECARO AND SHIRLEY J. DECARO, HIS WIFE, APPELLANTS,
v.
WASHINGTON TOWNSHIP, BERKS COUNTY, PENNSYLVANIA, HYDE W. BALLARD, RALPH H. GEHMAN AND FRANKLIN RENNINGER, APPELLEES



Appeal from the Order of the Court of Common Pleas of Berks County in case of Daniel F. DeCaro and Shirley J. DeCaro, his wife, v. Washington Township, Berks County, Pennsylvania, Hyde W. Ballard, Ralph H. Gehman and Franklin Renninger, No. 50 May Term, 1974.

COUNSEL

John A. Koury, with him R. Mark Faulkner, and O'Donnell, Weiss, Mattei, Eschbach, Suchoza & Koury, for appellants.

Arthur Ed. Saylor, with him Edelman, Schaeffer, Saylor, Readinger & Poore, for appellees.

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

Author: Kramer

[ 21 Pa. Commw. Page 254]

This is an appeal filed by Daniel F. DeCaro (and his wife) from a decision of the Court of Common Pleas of Berks County dismissing DeCaro's appeal from a refusal by the Washington Township Board of Supervisors to adopt a curative amendment to the Township's zoning ordinance. The sole issue presented is whether a threeacre minimum lot size zoning requirement is unconstitutional under the facts of this case. We hold that it is not.

DeCaro owns approximately 150 acres within the Township and desires to subdivide 16 of those acres into six lots, to be known as Robin Hill. Two lots of more than three acres each have been sold. The remaining four lots are each less than three acres. At the time DeCaro purchased the acreage, the Township's zoning ordinance classified the property as "R-1 Rural Conservation District" and required (as it still does) a minimum lot size of three acres. The zoning ordinance also provides for other residential usages with minimum lot sizes running to as low as 10,000 square feet.*fn1 Of the 9,000 acres in the Township, about 50 percent is classified R-1, and, of the remaining land, approximately 2,800 acres are available for development in areas requiring lot sizes of 40,000 square feet or less. It is estimated only 800 acres will be required to meet the demand (including increasing population) for development over the next 35

[ 21 Pa. Commw. Page 255]

    years. Ninety percent of the Township is unsuitable for on-site sewage disposal systems.

DeCaro filed a challenge together with a proposed curative amendment and plans for the development under the provisions of sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC).*fn2 The challenge was based solely upon the alleged unconstitutionality of section 201.2 of the zoning ordinance. Specifically, DeCaro claimed that "a minimum lot size of three (3) acres is unconstitutional in that it bears no substantial relation to the public health, safety, and welfare, and is, therefore, an unreasonable restriction upon use or development of land." A hearing was held before the Board of Supervisors at which DeCaro did little more than reiterate the allegation of his challenge. Although the proposed curative amendment suggested amending the zoning ordinance to provide a one-acre minimum lot size for all R-1 zoned property in the Township, DeCaro limited his testimony to the Robin Hill development. DeCaro's expert witness did not support the proposed curative amendment and offered three alternative "schemes," two of which he did not recommend and the third of which he recommended only if sanitary sewers were available. He also conceded that because of the slopes and valleys of the terrain in the R-1 district of the Township, it would not be feasible to develop some of the land on less than three acres.

The Board of Supervisors filed an extensive report in which it concluded, among other things, that (1) the acreage zoned R-1 was unsuitable for residential development; (2) the zoning ordinance provisions were made for residential land usages which adequately accommodate the projected population growth; and (3) there was sufficient developable land outside the R-1 zone to meet existing

[ 21 Pa. Commw. Page 256]

    and projected demand. Upon appeal, the court below, without receiving additional testimony or ...


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