Harry F. Dunn, Jr., Media, for appellant.
John P. Trevaskis, Jr., Media, for appellee, Tp. of Upper Providence.
John W. Nilon, Jr., Kassab, Cherry & Archbold, Media, for appellee, Citizens on Zoning.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy, J., did not participate in the consideration or decision of this case. Manderino, J., concurred in the result. Roberts, J., files a concurring opinion.
This is an appeal from an order of the Commonwealth Court, Surrick v. Zoning Hearing Bd. of Twp. of Upper Providence, 11 Pa. Commw. 607, 314 A.2d 565 (1974), affirming an order of the Court of Common Pleas of Delaware County which upheld the denial of appellant, Robert B. Surrick's, application for variance from the terms of the Zoning Ordinance of Upper Providence Township, Ordinance No. 34 of 1952, as amended, by the Zoning Hearing Board (Board) of Upper Providence Township.*fn1 The dispositive issue is whether the township ordinance unconstitutionally excludes multi-family dwellings. The Commonwealth
Court, in affirming the lower court's order, held that it did not. For the reasons set forth below, we disagree.*fn2
The history and facts of this case are as follows. Appellant sought to build apartments and townhouses on a 16.25 acre tract of land (four acres owned by appellant; 12.25 acres under agreement of sale with zoning contingency). The tract is located in an area designated A-1 Residential under the township ordinance, which permits only single family dwellings on one-acre lots. Appellant initially had applied to the Board of Supervisors of the Township to rezone the 12.25 acre tract to B-Business, the only ordinance classification permitting multi-family housing, to develop the site for apartments. The requested rezoning was denied after hearing held on September 2, 1971. Thereafter, appellant revised his plans to include the four acres of ground owned by him. He sought building permits, which were denied by the Building Inspector. An appeal was then taken to the Board requesting a variance and including a challenge to the constitutionality of the ordinance. The Board held hearings and subsequently denied the requested variance. It was this denial which ultimately resulted in the instant appeal.*fn3
Upper Providence Township is a western suburb of Philadelphia, located about 12 miles from the center of the city.
Providence Road bisects the township along a roughly northsouth axis, and Route 1, a limited access highway, intersects Providence Road cutting across the southern quarter of the township in a generally east-west direction (see Appendix for a map of the township). The 1970 census set the township's population at slightly over 9,200; the total acreage of the township is approximately 3,800 acres. Approximately one-quarter of the township land is undeveloped.
The zoning ordinance in question has classified 43 acres, or 1.14% of the total township acreage, as a B district; in this B district apartments are permitted along with other essentially commercial uses,*fn4 and the record shows that the B district is already substantially developed. Except for a three-block stretch of B district farther south in the township, most of the B district extends eight to ten blocks from
the intersection of Sandy Bank Road and Providence Road north along Providence Road and ends at the intersection of Rose Tree Road and Providence Road. Appellant's tract is just north of this intersection. The width of this portion of the B district is 175 feet on either side of Providence Road (see Appendix).
Article I Section 1 of the Pennsylvania Constitution protects the citizen's right to the enjoyment of private property, and governmental interference with this right is circumscribed by the due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution. U.S.Const. amends. V, XIV; Pa.Const. art. 1, § 1; Girsh Appeal, 437 Pa. 237, 241 n. 3, 263 A.2d 395, 397 n. 3 (1970). In reviewing zoning ordinances, this Court has stated that an ordinance must bear a substantial relationship to the health, safety, morals, or general welfare of the community. National Land and Investment Co. v. Easttown Twp. Bd. of Adjustment, 419 Pa. 504, 522, 215 A.2d 597, 607 (1965), citing, inter alia, Glorioso Appeal, 413 Pa. 194, 196 A.2d 668 (1964). Thus, without expressly labeling it as such, this Court has employed a substantive due process analysis in reviewing zoning schemes and has ...