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KEVY W. KAISERMAN AND GEORGE W. NEFF v. SPRINGFIELD TOWNSHIP (12/10/75)

decided: December 10, 1975.

KEVY W. KAISERMAN AND GEORGE W. NEFF, APPELLANTS,
v.
SPRINGFIELD TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Kevy K. Kaiserman and George W. Neff v. Springfield Township, No. 73-12717.

COUNSEL

Milton S. Lazaroff, for appellants.

Thomas M. Garrity, with him Richard E. Buck, for appellee.

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

Author: Mencer

[ 22 Pa. Commw. Page 289]

This is a zoning appeal from the Court of Common Pleas of Montgomery County which dismissed an appeal from the decision of the Board of Commissioners of Springfield Township (Board). That decision upheld the constitutionality of the Springfield Township Zoning Ordinance of 1940 (Ordinance) and denied the request of Kevy W. Kaiserman and George W. Neff (appellants) for a curative amendment.

We are faced, in this case, with a challenge to a zoning ordinance on the ground that it is unconstitutional because it results in a de facto exclusion of apartments. Appellants rely on Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), and Township of Willistown v. Chesterdale Farms, Inc., Pa. , 341 A.2d 466 (1975). Girsh, of course, prohibited a township from totally excluding multifamily dwellings by zoning ordinance, while Willistown found that an ordinance setting aside a "token" amount of land for multifamily dwellings is equally unconstitutional.

The appellants in this case ask us to extend these decisions and to conclude, as a matter of law, that a zoning ordinance by virtue of which 10.4% of a township's land is zoned for multifamily dwellings becomes exclusionary in its effects when the land previously zoned for apartments has become largely developed with singlefamily homes. This development, they assert, has left only a "token" amount of the township developed with multifamily dwellings.

Briefly, the case reaches us in the following manner. On March 7, 1973, appellants filed a petition with the Board, claiming, pursuant to Section 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC),*fn1 that the Ordinance was unconstitutional and invalid. At the

[ 22 Pa. Commw. Page 290]

    same time they submitted a curative amendment under Section 609.1 of the MPC, 53 P.S. ยง 10609.1. The Board properly fixed a date for hearing, gave notice, and conducted hearings on May 3 and 17, 1973; June 6, 14, and 27, 1973; and July 10, 1973.

The Board's decision, delayed with the agreement of both parties, was delivered on September 24, 1973. In that decision the Board upheld the validity of the Ordinance against the challenge and hence did not adopt the curative amendment. A zoning appeal notice was filed with the Court of Common Pleas of Montgomery County on October 15, 1973. The lower court dismissed the appeal in a decision dated February 7, 1975. Neither the Board nor the Court of Common Pleas made specific findings of fact.*fn2 However, we are able to find, in our reading of the lower court's opinion, statements which approximate findings of fact and which we in this instance deem to be sufficient for our review.

A zoning ordinance is presumed valid and constitutional; therefore, one challenging the ordinance has the heavy burden of proving otherwise. Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975). This is especially so when the ordinance is being challenged because it has ...


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