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BOARD SUPERVISORS BUCKINGHAM TOWNSHIP v. HERBERT AND IRMA BARNESS (01/25/78)

decided: January 25, 1978.

BOARD OF SUPERVISORS OF BUCKINGHAM TOWNSHIP, LAND USE TASK FORCE, AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANTS
v.
HERBERT AND IRMA BARNESS, HIS WIFE; JOSEPH A. AND NORMA J. CICCONE, HIS WIFE; JOHN F., JR. AND DELLA E. ENDERS, HIS WIFE; AND WILLIAM J. SHEDDEN, JR.; DONALD GREENBERG, BENJAMIN SEDMAN, HERBERT BURSTEIN, DR. ALVIN SMITH, ALVIN NEINBURG, INDIVIDUALS T/A FAIRWAY-SMITH ASSOCIATES; CLAUDE J. SCHLANGER; AND ROBERT H. YAROSCHUK AND PATRICIA YAROSCHUK, HIS WIFE, APPELLEES



Appeals from the Order of the Court of Common Pleas of Bucks County in cases of Herbert & Irma Barness; Joseph A. & Norma J. Ciccone, his wife; John F., Jr. & Della Enders; John F. Enders, Jr. and Della E. Enders, et al.; Donald Greenberg, et al.; Claude J. Schlanger; and Robert H. Yaroschuk and K. Patricia Yaroschuk v. Board of Supervisors of Buckingham Township, Nos. 75-2561-08-5, 75-2562-08-5, 75-2563-08-5, 75-2993-08-5, 75-2994-08-5, 75-3053-08-5 and 75-4715-08-5.

COUNSEL

George M. Bush, with him Albert L. Blackman, Jr., and Hartzel and Bush, for Board of Supervisors of Buckingham Township.

Thomas J. Oravetz, Deputy Attorney General, with him Keith Welks, Assistant Attorney General, for Commonwealth.

Richard P. McBride, with him Power, Bowen & Valimont, for Barness, Ciccone, Greenberg, Sedman, Burstein, Smith, Neinburg, t/a Fairway-Smith Associates, and Yaroschuk.

John A. VanLuvanee, with him William H. Eastburn, III, and Eastburn and Gray, for Enders, Shedden and Schlanger.

Olan B. Lowrey, for The Land Use Task Force.

Hershel J. Richman, for amicus curiae, Bucks County and Bucks County Planning Commission.

Fronefield Crawford, Jr., for amicus curiae, Philadelphia Chapter, American Institute of Planners.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 33 Pa. Commw. Page 366]

The Court of Common Pleas of Bucks County sustained the zoning appeals of seven owners of seven tracts of land in Buckingham Township from the action of the township supervisors dismissing the landowners' challenges to the validity of the township zoning ordinance and refusing their requests for curative amendments.*fn1 The landowners challenged the validity of the zoning ordinance on the ground that it forbade any new residential development other than the construction of single-family dwelling houses on lots not

[ 33 Pa. Commw. Page 367]

    smaller, and in some districts considerably larger, than 10,000 square feet. This was indeed what the Buckingham Township zoning ordinance provided in the months of March, April and July 1974 when the landowners filed their challenges and requests for curative amendment; it was what the ordinance had provided from the time of its enactment in 1951; and it continued to be what the ordinance provided until March 6, 1975, almost a year after the first of these challenges was submitted to the supervisors. The zoning ordinance thus clearly prevented the construction of apartments and townhouses proposed by six of the landowners and of mobile home parks proposed by the seventh. The court below concluded that the ordinance was unconstitutionally exclusionary on the authority of Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), and East Pikeland Township v. Bush Brothers, Inc., 13 Pa. Commonwealth Ct. 578, 319 A.2d 701 (1974), where ordinances which prohibited the use of land for, respectively, apartment houses and mobile home parks, were invalidated. We add to those cases Camp Hill Development Company, Inc. v. Zoning ...


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