Appeal from the Order of the Court of Common Pleas of Chester County in case of Waynesborough Corporation v. The Easttown Township Zoning Hearing Board, No. 37 April Term, 1973.
John S. Halsted, with him Gawthrop & Greenwood, for appellant.
William J. Fuchs, with him Gordon L. Keen, Jr., and Obermayer, Rebmann, Maxwell & Hippel, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers, and Blatt. Opinion by Judge Mencer. Judge Rogers concurs in the result.
[ 23 Pa. Commw. Page 138]
Easttown Township (Township) has appealed from a decision of the Court of Common Pleas of Chester County which declared unconstitutional that portion of the Township Zoning Ordinance 109 limiting the construction of multifamily dwellings to a district known as "Apartment-Office-Research" (AOR). The court below also granted the request of appellee, Waynesborough Corporation (Waynesborough), for a building permit subject to the applicable ordinances and regulations of the Township.
[ 23 Pa. Commw. Page 139]
The case reaches us in this manner: Waynesborough owns 3.8 acres of land in a section of the Township zoned "B-Residence District" which permits the construction of single-family residences on lots of not less than 21,000 square feet. Waynesborough wished to construct a 42-unit condominium project consisting of two buildings and related facilities on its land. Since such a use was prohibited in the B-Residence District where the land was situated, Waynesborough submitted a curative amendment to the Board of Supervisors which was rejected.*fn1 Nevertheless, Waynesborough pursued its challenge by applying for a building permit to construct the project. On September 20, 1972, the zoning officer rejected the application because multiple dwellings were not a permitted use in the district. Waynesborough sought a hearing before the Zoning Hearing Board (Board), asserting its constitutional challenge.*fn2 After two hearings held on November 29, 1972 and February 8, 1973, the Board affirmed the zoning officer's denial of the permit but felt itself incapable of ruling specifically on the constitutional question. The Board's action, of course, was tantamount to a rejection of the constitutional challenge. The lower court, in an able and thorough opinion by Judge Sugerman, dated March 7, 1975, found the ordinance to be unconstitutional, relying heavily on Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970). This was prior to the decision of the Pennsylvania Supreme Court in Willistown Township v. Chesterdale Farms, Inc., Pa. ,
[ 23 Pa. Commw. Page 140341]
A.2d 466 (1975). The Willistown holding only serves to strengthen the holding of the court below. We believe that Willistown is controlling and therefore affirm.
The lower court relied exclusively on the record and findings made before the Board. Our scope of review in a zoning case where, as here, the court below took no additional evidence is limited to a determination of whether the zoning board abused its discretion or committed an error of law. Pittsburgh Outdoor Advertising Co. v. Zoning Board of Adjustment, 14 Pa. Commonwealth Ct. 54, 320 A.2d 916 (1974). Errors of law include constitutional questions. Levin v. Zoning Hearing Board of Radnor Township, 11 Pa. Commonwealth Ct. 452, 314 A.2d 579 (1974).
Once again, we are faced with an allegation that the zoning regulations of a township have not met the mandate of the Supreme Court of Pennsylvania as announced in Girsh, supra, because they fail to make a reasonable provision for apartment use. The first time we faced this difficult issue we phrased the question as follows:
"If total prohibition of apartments within a municipality is not to be countenanced, at what point short of total prohibition will a township be found to have met its responsibilities to the community at large under the Constitution?" Willistown Township v. Chesterdale ...