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decided: December 24, 1977.



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.

Author: Nix

[ 476 Pa. Page 185]


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

[ 476 Pa. Page 186]

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.

[ 476 Pa. Page 187]

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

[ 476 Pa. Page 188]

    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, ยง 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 concluded implicitly that exclusionary or unduly restrictive zoning techniques do not have the requisite substantial relationship to the public welfare. See Concord Twp. Appeal, 439 Pa. 466, 268 A.2d 765 (1970); Girsh Appeal, supra.

In Twp. of Willistown v. Chesterdale Farms, Inc., 462 Pa. 445, 341 A.2d 466 (1975), this Court reaffirmed its conviction that suburban communities which find themselves in the path of urban-suburban growth cannot establish residential enclaves by excluding population growth.*fn5 Willistown in fact was no departure from precedent but merely a culmination of prior case law which had invalidated zoning techniques which seriously impeded or effectively "zoned out" population growth. See National Land and Investment Co. v. Easttown Twp. Bd. of Adjustment, supra (invalidating a

[ 476 Pa. Page 189]

    four acre lot minimum); Girsh Appeal, supra (invalidating a zoning ordinance which totally excluded apartments); Concord Twp. Appeal, supra (invalidating two and three acre lot minima).*fn6 In Willistown, this Court was confronted with a zoning ordinance amendment which permitted multi-family dwellings on 80 acres out of a total of 11,589 acres in the township. In striking down this land-use scheme as "tokenism" and thus exclusionary, we extended the prohibition in Girsh to include not only total exclusion of multi-family dwellings but also partial exclusion, or "selective admission." Twp. of Willistown v. Chesterdale Farms, Inc., 462 Pa. 445, 448-49, 341 A.2d 466, 468 (1975). In so holding, we set forth the following rationale:

"The implication of our decision in National Land is that communities must deal with the problems of population growth. They may not refuse to confront the future by adopting zoning regulations that effectively restrict population to near present levels . . . ." Id. 462 Pa. at 449, 341 A.2d at 468, quoting, Concord Twp. Appeal, 439 Pa. 466, 474, 268 A.2d 765, 768-69 (1970).

This Court's ruling in Willistown rested upon the premise of Girsh that where a municipal subdivision "is a logical place for development to take place, it should not be heard to say that it will not bear its rightful part of the burden." Appeal of Girsh, supra, 437 Pa. at 245, 263 A.2d at 399. It also embraces the more basic proposition that a political subdivision cannot isolate itself and ignore the housing needs of the areas surrounding it. To implement these concepts, we adopted the "fair share" principle, which requires local political units to plan for and provide land-use regulations which meet the legitimate needs of all categories of people who may desire to live within its boundaries. Mr. Justice O'Brien, speaking for this Court in Willistown, stated:

[ 476 Pa. Page 190]

"The New Jersey Supreme Court, in Southern Burlington County NAACP v. Twp. of Mount Laurel, 67 N.J. 151, 336 A.2d 713 (1975), in discussing a zoning ordinance which provided for a total exclusion of apartment dwellings, stated:

'We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need therefor. These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do.' (Emphasis in original).

Nor are we convinced by Willistown's argument that Chesterdale's development plans would overburden its municipal services. Suburban municipalities within the area of urban outpour must meet the problems of population expansion into its borders by increasing municipal services, and not by the practice of exclusionary zoning."*fn7 Id. 462 Pa. at 449-450, 341 A.2d at 468.

[ 476 Pa. Page 191]

Some commentators have expressed concern that judicial adoption of the "fair share" test will thrust courts into the role of super boards of adjustment, thereby usurping a function that is more properly legislative or administrative in nature.*fn8 Such concern shows a misconception of what we contemplate our role will be. In establishing the "fair share" standard, this Court has merely stated the general precept which zoning hearing boards and governing bodies must satisfy by the full utilization of their respective administrative and legislative expertise. We intend our scope of review to be limited to determining whether the zoning formulas fashioned by these entities reflect a balanced and weighted consideration of the many factors which bear upon local and regional housing needs and development.

The case law of this jurisdiction, as developed by this Court as well as the Commonwealth Court, both before and after our decision in Willistown, is instructive as to the relevant factors to which a court must look in conducting a review of zoning ordinances which are alleged to be exclusionary.

[ 476 Pa. Page 192]

From this body of law a useful analytical method can be synthesized to aid our review. The initial inquiry must focus upon whether the community in question is a logical area for development and population growth. Girsh Appeal, supra; National Land and Investment Co. v. Easttown Twp. Bd. of Adjustment, supra. The community's proximity to a large metropolis and the community's and region's projected population growth figures are factors which courts have considered in answering this inquiry. Waynesborough Corp. v. Easttown Twp. Zoning Hearing Bd., 23 Pa. Commw. 137, 143, 350 A.2d 895, 898 (1976).

Having determined that a particular community is in the path of urban-suburban growth, the present level of development within the particular community must be examined.*fn9 Population density data and the percentage of total undeveloped land and the percentage available for the development of multi-family dwellings are factors highly relevant to this inquiry. Twp. of Willistown v. Chesterdale Farms, Inc., supra; National Land and Investment Co. v. Easttown Twp. Bd. of Adjustment, supra; Waynesborough Corp. v. Easttown Twp. Zoning Hearing Bd., supra; DeCaro v. Washington Twp., 21 Pa. Commw. 252, 254, 344 A.2d 725, 726 (1975).

[ 476 Pa. Page 193]

Assuming that a community is situated in the path of population expansion and is not already highly developed, this Court has, in the past, determined whether the challenged zoning scheme effected an exclusionary result or, alternatively, whether there was evidence of a "primary purpose" or exclusionary intent to zone out the natural growth of population. Twp. of Willistown v. Chesterdale Page 193} Farms, Inc., supra, citing, National Land and Investment Co., supra; Concord Twp. Appeal, supra. Because the Willistown "fair share" test compels judicial examination of the actual effect of a zoning ordinance upon the availability of multi-family dwellings, evidence of exclusionary motive or intent, whether direct or circumstantial, is not of critical importance.*fn10 Thus, Willistown marked an implicit departure away from judicial inquiry into the motives underlying a particular zoning ordinance.*fn11 Our primary concern now is centered upon an ordinance's exclusionary impact.

[ 476 Pa. Page 194]

In analyzing the effect of a zoning ordinance, the extent of the exclusion, if any, must be considered. Is there total exclusion of multi-family dwellings, which we disapproved in Girsh Appeal, supra, or is the exclusion partial ? If the zoning exclusion is partial, obviously the question of the ordinance's validity is more difficult to answer. In resolving this issue, once again the percentage of community land available under the zoning ordinance for multi-family dwellings becomes relevant. This percentage must be considered in light of current population growth pressure, within the community as well as the region, and in light of the total amount of undeveloped land in the community. Where the amount of land zoned as being available for multi-family dwellings is disproportionately small in relation to these latter factors, the ordinance will be held to be exclusionary.*fn12

[ 476 Pa. Page 195]

It now remains to apply this analytical matrix to the facts of the instant case to ascertain if the ordinance in question reflects the proper consideration of the above-discussed factors. There can be little doubt that Upper Providence Township is a logical area for development and population growth. This conclusion is supported by the fact that the township is located a mere twelve miles or so from Philadelphia and is situated at the intersection of two main traffic arteries, one of which, Route 1, is a direct link with the city. See Girsh Appeal, supra; National Land and Investment Co. Page 195} v. Easttown Twp. Bd. of Adjustment, supra; Waynesborough Corp. v. Easttown Twp. Zoning Hearing Bd., supra. The record shows that the township is not a high density population area; roughly one-quarter of the township land is undeveloped. Thus the township's present level of development does not preclude further development of multi-family dwellings. See note 9 supra.

The zoning ordinance in question results in a partial exclusion of multi-family dwellings, providing, as it does, 1.14% of the township land for development of multi-family dwellings. It is also significant that multi-family dwellings are only one of more than a dozen other uses permitted on this fraction of land. See note 4 supra. Therefore, this land is not set aside for the exclusive use of multi-family dwellings; development of such dwellings must compete with the other uses permitted in the B district. The above analysis leads inescapably to the conclusion that the facts of the instant case are legally indistinguishable from those in Willistown.*fn13 Thus we hold that Upper Providence Township

[ 476 Pa. Page 196]

    has not provided a "fair share" of its land for development of multi-family dwellings. Twp. of Willistown v. Chesterdale Farms, Inc., supra.

We therefore direct that zoning approval for appellant's land be granted and that a building permit be issued conditional upon appellant's compliance with the administrative requirements of the zoning ordinance and other reasonable controls and regulations which are consistent with this opinion. Id.

[ 476 Pa. Page 197]

[ 476 Pa. Page 198]

ROBERTS, Justice, concurring.

I concur in the result. The Township's allocation of land clearly is not reasonable. See Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970); Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970); National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965); Township of Willistown v. Chesterdale Farms, 462 Pa. 445, 341 A.2d 466 (1975) (concurring opinion of Roberts, J.). I cannot agree, however, with the majority's use of the notion of "fair share."

The majority asserts that this Court in Township of Willistown v. Chesterdale Farms, 462 Pa. 445, 341 A.2d 466 (1975) (plurality opinion) adopted the view that each municipality must provide a "fair share" of township land for "the legitimate needs of all categories of people who may desire to live within its boundaries." To the contrary, the "fair share" theory has never commanded a majority of this Court. Strong reasons exist for this Court to continue its refusal to endorse "fair share."

In Willistown, the plurality looked to Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713 (1975), appeal dismissed and cert. denied, 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975), where the Supreme Court of New Jersey relied upon "fair share" in striking down an exclusionary zoning scheme. Although the New Jersey Court, like today's majority, expressed the hope that its examination of local zoning would not transform the court into an all-powerful board of adjustment, the history of the New Jersey Court's attempted enforcement of "fair share" suggests strongly that a theory so closely akin to court imposed regional zoning must convert courts into regional planning commissions.

In Oakwood at Madison, Inc. v. Township of Madison, 72 N.J. 481, 371 A.2d 1192 (1977), the New Jersey Court was called upon to explicate its decision in Mount Laurel. So devisive, apparently, was the attempt to translate the broad propositions of "fair share" announced in Mount Laurel into concrete and manageable standards, that the Court could

[ 476 Pa. Page 199]

    not reach a decision until after hearing argument four times over a period of nearly four years. The majority that emerged once more asserted that courts should not interfere with local zoning matters. Nevertheless, in the absence of regional planning and legislative or administrative controls, the Court required the judiciary to assume the task of ensuring that each municipality in a region allocate land in accordance with the current and anticipated needs of the region. 72 N.J. at 535, 371 A.2d at 1219.*fn1

In Oakwood, the court emphasized that trial courts attempting to enforce Mount Laurel need not set precise quotas on the land townships must allocate for particular uses. 72 N.J. at 523, 543, 371 A.2d at 1213, 1223. That instruction of course did not relieve trial courts of the obligation to receive and analyze volumes of statistics concerning regional needs and to construct estimates of the acreage to be set aside by each municipality in the region. See id. at 525-29, 371 A.2d at 1214-16. The court must therefore engage in the essentials of regional zoning.

Indeed, in Oakwood, the trial court waded through three comprehensive planning studies which assessed and evaluated the housing, population, labor, income, transportation, real estate and educational conditions of the region, current and prospective, and which estimated the "fair shares" of Madison and its sister municipalities for the region's zoning needs. Based on these studies, the trial court determined that to meet its "fair share" of the housing needs of the region, Madison's zoning ordinance must "approximate in additional housing unit capacity the same proportion of low-income housing as its present low-income population, about 12%, and the same proportion of moderate-income housing as its moderate-income population, about 19%." Id. at 541, 371 A.2d at 1222. When a court makes such determinations

[ 476 Pa. Page 200]

    and issues such orders, it is zoning, performing the role of a legislature or of a regional zoning board. That appellate courts, as well as courts at the trial level, are needlessly cast into this role compounds the error.

Mount Laurel relied in part on our own cases, such as Concord Township Appeal, Girsh Appeal, and National Land and Investment Company v. Easttown Township Board of Adjustment, supra, in striking down exclusionary zoning, but in introducing "fair share" went far beyond anything this Court had ever decided or suggested. At a time when New Jersey itself is limiting application of Mount Laurel,*fn2 it is ironic that the majority should adopt the New Jersey Court's vast expansion of the zoning principles applied in our cases when this Court has declined to embrace such an expansion independently.

The crucial distinction between our cases and those of New Jersey is that "fair share" transforms courts, both trial and appellate, into what Mr. Justice Pomeroy in his dissent in Willistown called "super boards of adjustment" and "planning commissions of last resort." 462 Pa. at 452-53, 341 A.2d at 470.*fn3 Nothing in law, policy or constitutional decision-making in land use disputes requires that we subject our judicial system to an unnecessary burden for which it is singularly ill equipped, or impose on regions and municipalities a "fair share" scheme of land use regulation which properly is for legislative and administrative bodies to develop. Our own case law has proved adequate to the task of preventing unconstitutional exclusionary zoning schemes without involving our judiciary in the endless complications

[ 476 Pa. Page 201]

    engendered by Mount Laurel in New Jersey.*fn4 We would do well to continue to steer clear of "fair share."

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