Appeals from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Application of John A. Friday, et ux., Requesting Fox Chapel Borough Zoning Hearing Board to Hear Applicants' Challenges to the Fox Chapel Zoning Ordinance and Map and Make Findings of Fact and Divisions Based Thereon, No. S.A. 96 of 1976.
A. Bruce Bowden, with him Buchanan, Ingersoll, Rodewald, Kyle & Buerger and William A. Jones, for appellants.
William R. Grove, with him Hollinshead and Mendelson, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Rogers.
[ 33 Pa. Commw. Page 258]
The Borough of Fox Chapel has appealed an order of the Court of Common Pleas of Allegheny County reversing a decision of the Zoning Hearing Board of the Borough of Fox Chapel dismissing a challenge by John A. Friday, Jr. to the validity of the Borough's Zoning Ordinance of 1971. William A. Jones and Katherine P. Jones, his wife, and Harold H. Hammer and Hannah R. Hammer, his wife, who intervened below on the side of the Borough have also appealed.
The Borough Zoning Ordinance does not provide for multi-family dwelling use anywhere in the Borough. The only permitted residential use of land is for single family homes on one, two or three acre lots. Friday owns a 22.85 acre tract located in a Class A Residential District where the minimum lot size is three acres. Pursuant to Section 1004(1)(a) of the Pennsylvania Municipalities Planning Code (MPC),*fn1 53 P.S. § 11004(1)(a), Friday submitted a challenge to the constitutional validity of the use provisions of the Zoning Ordinance to the Zoning Hearing Board. The submission included plans for a single six-story, 215 unit apartment building proposed to be constructed on Friday's land. Friday later filed an amended plan for eleven three-story buildings containing a total of 121 units. During evidentiary hearings conducted by the Zoning Hearing Board, Friday further modified his plan by finally proposing to construct one five-story building containing 181 units. The Zoning Hearing Board made extensive findings of facts; concluded that the Zoning Ordinance was valid; and dismissed Friday's challenge.
[ 33 Pa. Commw. Page 259]
Without taking additional evidence, the court below reversed the Zoning Hearing Board's order and held that the Zoning Ordinance was exclusionary and therefore unconstitutional. The court directed the Borough to enact curative amendments providing for apartment use. Friday filed a petition in the court below requesting a modification of its order, citing Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 328 A.2d 464 (1974). The court below properly vacated its first order in part and entered a second directing the Borough to issue a building permit to Friday upon his compliance with valid building controls in effect on the date of Friday's original application for a building permit. We affirm.
The Borough first says that because ordinances enjoy a presumption of validity, Friday had the burden of proving that the Fox Chapel Ordinance was not related to public health, safety and welfare. With this we agree. The Borough then says that Friday did not carry this burden by simply showing that the ordinance totally excluded apartment use. This proposition is clearly erroneous. When it is demonstrated that an ordinance entirely excludes a facially legitimate use, the presumption of validity is rebutted; and the municipality must then present evidence to establish that its regulation bears a relationship to the public health, safety and welfare. Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971). Friday's proposed apartment house is a legitimate use of land, absent the Zoning Ordinance; the Zoning Ordinance's failure to provide for this use is tantamount to its exclusion. Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970); Dublin Properties v. Board of Commissioners of Upper Dublin Township, 21 Pa. Commonwealth Ct. 54, 342 A.2d 821 (1975). Friday clearly met his burden of overcoming the presumption of the validity of the Fox Chapel ordinance.
[ 33 Pa. Commw. Page 260]
The rule as to burdens enunciated in Beaver Gasoline Co. v. Osborne Borough, supra, has been applied in cases challenging the validity of zoning ordinances prohibiting business uses*fn2 and those prohibiting various kinds of residential uses.*fn3 In Girsh Appeal, supra, Mr. Justice Roberts, with the apparent approval of three other justices, declared that a prohibition of apartment use has more critical implications than a prohibition of an industrial or commercial use because the former restricts the right of people to live on land, and further that municipalities "cannot have . . . zoning scheme[s] that make no reasonable provision for apartment uses." 437 Pa. at 243, 263 A.2d at 398.
The Borough says that it carried its burden of justifying its exclusion of apartment use by showing that apartments would cause an increase in population which would in turn place a strain on municipal services, cause congestion of its roads and do harm to the aesthetic nature of the ...