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HENRY A. BERGER AND CROXLEY GREEN ASSOCIATES v. BOARD SUPERVISORS WHITPAIN TOWNSHIP (08/08/77)

decided: August 8, 1977.

HENRY A. BERGER AND CROXLEY GREEN ASSOCIATES
v.
BOARD OF SUPERVISORS OF WHITPAIN TOWNSHIP, APPELLANT. HENRY A. BERGER AND CROXLEY GREEN ASSOCIATES V. WHITPAIN TOWNSHIP, R. PATTERSON MANN AND FIVE POINTS CIVIC ASSOCIATION. R. PATTERSON MANN AND FIVE POINTS CIVIC ASSOCIATION, APPELLANTS



Appeals from the Order of the Court of Common Pleas of Montgomery County in case of Henry A. Berger and Croxley Green Associates v. Board of Supervisors of Whitpain Township, No. 75-17857.

COUNSEL

Charles A. Kerlavage, for Board of Supervisors of Whitpain Twp.

Robert J. Sugarman, with him, of counsel, Dechert, Price & Rhoads, for Mann and Five Points Residents Assoc.

John G. Kaufman and Morris Gerber, with them Marc D. Jonas and Bean, DeAngelis and Kaufman, for Henry A. Berger and Croxley Green Associates.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers. Dissenting Opinion by Judge Mencer.

Author: Rogers

[ 31 Pa. Commw. Page 388]

This is a zoning case. The appellees, Henry E. Berger and Croxley Green Associates, own a 50 acre tract of land located in Whitpain Township, Montgomery County, not far from Norristown. This land is an R-1 Residence District of the Whitpain Township Zoning ordinance where residential development is restricted to single family residential dwellings on lots containing a minimum of 30,000 square feet. The appellees desire to build a development of townhouses on their land. To this end, they filed with the Township Board of Supervisors an application for a curative amendment 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), challenging the validity of the zoning ordinance as assertedly prohibiting the townhouse development throughout the Township. The curative amendment application requested the creation of a new TH-Townhouse District in which townhouses would be a permitted use and was

[ 31 Pa. Commw. Page 389]

    accompanied by plans for a 250 unit development, to be offered for sale from $55,000 to $60,000 each.

The Board of Supervisors conducted full public hearings but eventually refused the appellees' request. The bases for the Supervisors' decision were: (1) that the Township did not in fact totally ban townhouses as witnessed by its former approval of 1995 and the actual construction of 520 units, and (2) that townhouses were a permissible use under the Zoning Ordinance in the R-3 Multi-Family District and, by special exception, in the I Limited Industrial District. The present appellees appealed the Supervisors' decision to the Montgomery County Common Pleas Court. The Township and R. Patterson Mann, a landowner, and the Five Points Civic Association, the last two jointly, were permitted to intervene below in support of the Supervisors' decision.

The court below first dismissed Berger and Croxley Green's appeal. It later, upon their application, granted reargument and eventually reversed the Board of Supervisors' decision and remanded the appellees' plans for review by the appropriate officials pursuant to Section 1011 of the MPC, 53 P.S. § 11011. The court below concluded that the Whitpain Township Zoning Ordinance prohibited townhouse development throughout the municipality. The Township, Mr. Patterson and the Five Points Civic Association have appealed.

Since the court below received no additional evidence our review is confined to a determination of whether the Board of Supervisors abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record. Waynesborough Corporation v. Easttown Township Zoning Hearing Board, 23 Pa. Commonwealth Ct. 137, 350 A.2d 895 (1976). The crucial issue of whether townhouse development falls within any of the categories specified in the zoning ordinance is a question

[ 31 Pa. Commw. Page 390]

    of law and subject to our review. Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975).

The burden of proving clearly and unmistakably the unconstitutionality of a zoning ordinance is upon the person so asserting; and the presumptions are in favor of the constitutionality of legislation, including municipal ordinances. Bilbar Construction Co. v. Easttown Township Board of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958). However, the ordinance which fails entirely to provide for a needed and desired kind of residential use is exclusionary and as a consequence unconstitutional. Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970). In Girsh Appeal, just cited, the subject of the exclusion was apartment houses. This Court, consistent with that decision, has held that a zoning provision totally prohibiting townhouse uses is likewise unconstitutional. Dublin Properties v. The Board of Commissioners of Upper Dublin Township, 21 Pa. Commonwealth Ct. 54, 342 A.2d 821 (1975); Westrum Enterprises v. Board of Commissioners of Upper Dublin Township, 21 Pa. Commonwealth Ct. 51, 343 A.2d 685 (1975); Ellick v. Worcester Township, supra; Camp Hill Development Co., Inc. v. Zoning Board of Adjustment, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974).

The appellants, Mann and Five Points Civic Association, say that the lower court erred in concluding that townhouse development was not a permitted use in the R-3 Multi-Family District of Whitpain Township. They suggest support for the Board of Supervisors' conclusion that townhouse development is permitted in the R-3 district because the Board had in the past approved the existence of upwards of 1900 units. In response to the same contention in Dublin Properties v. Board of Commissioners of Upper Dublin Township, supra, we wrote:

[ 31 Pa. Commw. Page 391]

The fact that the Township has permitted townhouse development, however, does not cure the defect in the ordinance, i.e. the failure to provide for ...


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