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GRANT J. BENHAM v. BOARD SUPERVISORS MIDDLETOWN TOWNSHIP AND JOHN C. SNYDER ET AL. AND WILLIAM L. POTTER ET AL. (12/08/75)

decided: December 8, 1975.

GRANT J. BENHAM, PAUL DARLINGTON AND RICHARD S. DARLINGTON, APPELLANTS
v.
BOARD OF SUPERVISORS OF MIDDLETOWN TOWNSHIP AND JOHN C. SNYDER ET AL. AND WILLIAM L. POTTER ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Grant J. Benham, Paul Darlington and Richard S. Darlington v. Board of Supervisors of Middletown Township and John C. Snyder, et al. and William L. Potter, et al. No. 7562 of 1974.

COUNSEL

Holbrook M. Bunting, Jr., with him John P. Trevaskis, Jr., Jan Z. Krasnowiecki, and, of counsel Trevaskis, Doyle, Currie, Nolan & Bunting, for appellants.

Thomas J. Beagan, Jr., with him Timothy B. Barnard, for appellee.

John C. Snyder, with him Leslie B. Potter, and Lentz, Riley, Cantor, Kilgore & Massey, Ltd., for intervening appellees.

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

Author: Wilkinson

[ 22 Pa. Commw. Page 247]

This case is an appeal by Grant J. Benham, Paul Darlington and Richard S. Darlington (appellants) from an order of the Delaware County Court of Common Pleas upholding the decision of the Middletown Township Board of Supervisors (Board) in which it refused to adopt a curative amendment proposed by appellant Benham. Appellants also assign as error another order of the same court allowing certain persons to intervene in the appeal proceedings before the lower court. We affirm both orders.

[ 22 Pa. Commw. Page 248]

Grant J. Benham is the equitable owner and Paul Darlington and Richard S. Darlington are the legal owners of 155 acres of land situated in Middletown Township, Delaware County (Darlington property).

On June 15, 1973, pursuant to Sections 609.1 and 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10609.1, 11004(1)(b), appellant Benham filed an application with the Board for a curative amendment. The application substantively challenged the validity of the Township zoning ordinance and map on the grounds that they unconstitutionally prohibited the use of property located within the Township for the development and sale of townhouses. A curative amendment was proposed to remedy this alleged illegality by creating a new R4-B Residence District which authorizes townhouse development.

Benham also submitted a proposed amendment to the zoning map to change the classification of the Darlington property to the new zoning district. The Darlington property was, and continues to be, within an R1-A Residence District which, except for certain non-residential uses, limits the use of property to one single family detached home per 80,000 square feet.

Hearings were held by the Board from August 8, 1973, to May 23, 1974. On June 26, 1974, the Board issued a decision, containing 33 findings of fact, which rejected the application and refused to adopt the proposed curative amendment. An appeal was taken to the Delaware County Court of Common Pleas in which certain property owners were permitted to intervene. The court, without taking additional evidence, dismissed appellants' appeal and thereby upheld the decision of the Board. Appellants now appeal to this Court on seven grounds.

Before considering the merits of appellants' contentions, however, we must emphasize that in appeals of cases arising out of Section 1004 of the MPC, 53 P.S.

[ 22 Pa. Commw. Page 249]

§ 11004, where the governing body has made its own findings of fact and the court of common pleas on review does not receive additional evidence, this Court is bound by those findings of fact made by the governing body which are supported by substantial evidence. Robin Corporation v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975).

As their first two grounds of appeal, appellants allege that the lower court erred in failing to find that the Township zoning ordinance is unconstitutional as being de jure or de facto exclusionary. As their third ground, appellants urge that this exclusion is evidenced by the failure of the Township to provide for its "fair share" of anticipated regional housing requirements, and that the lower court erred in holding otherwise.

A zoning ordinance is presumed valid and constitutional, thus placing a heavy burden on anyone challenging the ordinance to prove the contrary. Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975). In proving de jure exclusion of a particular use, a challenge must demonstrate that the ordinance, on its face, completely bans such use. See id. In proving de facto exclusion, the proponent bears the onus of showing that, even though the ordinance on its face permits a specific use, the ordinance as applied effectively prohibits such use throughout the municipality. Hodge v. Zoning Hearing Board of West Bradford Township, 11 Pa. Commonwealth Ct. 311, 312 A.2d 813 (1973). We concur with the court below that appellants did not meet these burdens.

Appellants point to Section 1211 of the Township ordinance which excludes "row dwellings" in any conventional zoning district.* ...


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