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decided: April 28, 1978.


No. 35 May Term, 1975, Appeal from an Order of the Commonwealth Court Reversing an Adjudication of the Department of Community Affairs, Commonwealth of Pennsylvania.


Allen C. Warshaw, Lawrence Silver, Deputy Attys. Gen., Dept. of Justice, Harrisburg, for appellant.

Frank R. Bolte, Robert N. Hackett, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Nix, J., joined.

Author: Manderino

[ 478 Pa. Page 550]


Appellant, the Department of Community Affairs of the Commonwealth of Pennsylvania, appeals from an order of the Commonwealth Court reversing the appellant's denial of funds to appellee, Upper St. Clair Township, Allegheny County, Pennsylvania, for the development of a park. Upper St. Clair Township v. Commonwealth Dep't of Community Affairs, 13 Cmwlth. 71, 317 A.2d 906 (1974).

Upper St. Clair applied to the Commonwealth Department of Community Affairs (Department) for Project 500 funds to develop its Brookside Park Project. Project 500 is a fund of $500,000,000 borrowed by the Commonwealth to create a fund to be used, inter alia, for the reclamation and development of park and recreational lands. See Pa.Const., art. 8, ยง 16. Of that amount, $75,000,000 was allotted to the Department to distribute to eligible political subdivisions, in order to help pay the cost of developing such lands. Upper St. Clair had on prior occasions requested and received park funds, including a grant to acquire the site for Brookside Park.

On August 17, 1972, however, the Department Secretary denied Project 500 funds to Upper St. Clair, despite the fact Upper St. Clair's application was approved by the Department Staff. The Secretary's reasons were as follows:

"Applicant has failed to persuade the Department of Community Affairs:

1. That it is not presently engaging in, and does not intend to continue engaging in, exclusionary development

[ 478 Pa. Page 551]

    policies, that is, zoning and other land-use control practices that effectively preclude construction of dwelling units that could house minority, and low-income and (in some cases) middle-income families, either by direct exclusion or by raising the price of residential development;

2. That such exclusionary development policies would not adversely affect access by minorities and the poor to the proposed project facilities;

3. That, in terms of the limited resources presently available, the proposed project would effectively serve the most pressing community needs."

Upper St. Clair requested a hearing which was granted. The hearing panel, consisting of three individuals chosen by the Department, concluded that Upper St. Clair was an "exclusive" community engaging in "exclusionary policies," and recommended that the Secretary adhere to his denial of funds. The Secretary did so.

The Commonwealth Court reversed the Department and ordered the application approved. Upper St. Clair Township v. Commonwealth Dep't of Community Affairs, 13 Pa. Commw. 71, 317 A.2d 906 (1974). We granted allowance of appeal, and now affirm the Commonwealth Court's order that Upper St. Clair's application be approved.

Upper St. Clair is a suburban community located south of Pittsburgh, Pennsylvania. According to the 1970 census, its population is 15,411. Compared to the general makeup of the Pittsburgh metropolitan region, it is a wealthy community. Two-thirds of the households would qualify for the top twenty per cent income range of the region. Over ninety per cent of its residents live in owner occupied housing, compared to about sixty-five per cent for the region. The percentage of blacks living in the community is less than one per cent. The percentage of the aged living in the community is much less than the percentage of the aged living in the region. Basically the community is made up of middleaged home owners. The appellant correctly notes that Upper St. Clair is unrepresentative of the Pittsburgh region in

[ 478 Pa. Page 552]

    terms of the cost of housing, racial distribution, and income distribution.

According to the appellant, Upper St. Clair is an exclusive community which engages and has engaged in exclusionary development policies in its zoning and land use control practices. Because of these exclusionary development policies, the appellant contends that it properly denied Upper St. Clair funds for the development of Brookside Park. We cannot accept appellant's argument.

Appellant contends that it may deny funds to "an exclusive community which engages in exclusionary development policies." Appellant does not contend, however, that any of Upper St. Clair's ordinances, including its zoning ordinance, are unconstitutional. At no time, from the original filing of Upper St. Clair's application to the appeal in this Court, has appellant contended that appellee's zoning ordinance is unconstitutional.

The Commonwealth Court stated in its opinion that appellant concedes appellee's zoning ordinance to be facially constitutional. In this appeal, appellant contends that the Commonwealth Court unfairly characterized its position. Yet, before this Court, appellant again conceded the constitutionality of appellee's zoning ordinance. Appellant states in its brief: "[S]uffice it to say that the Commonwealth has not assumed the burden that USC's zoning ordinance is, on its face, unconstitutional, although it might be." We are unable to read appellant's arguments in any other manner than as the Commonwealth Court did. For purposes of this appeal, we have no choice but to conclude that the appellant is not attacking the constitutionality of Upper St. Clair's zoning ordinance. This important point is not simply a matter of semantics. At no time since appellee filed its original application has appellant argued that Upper St. Clair's zoning ordinance is unconstitutional. We therefore do not have before us, and neither did the Commonwealth Court, the issue as to whether appellant's zoning ordinance is unconstitutional on its face. Under these circumstances, we must presume its constitutionality. Schuback v. Silver,

[ 478 Pa. Page 553461]

Pa. 366, 380, 336 A.2d 328, 335 (1975); Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964).

Moreover, appellant does not contend, and has not contended, that township officials have applied the ordinance in any unconstitutional way. The record is absolutely silent concerning any discriminatory application of the zoning ordinance by township officials at any time. There is no evidence of any manipulative practices designed to discourage or prevent an influx of poor or minority families into the township. The Department's own planning advisor testified that no application to build multi-family dwellings was ever denied in Upper St. Clair Township. As to the township's parks, the record shows that Upper St. Clair's recreational facilities are open to any persons desiring to make use of them. In short, the record is devoid of evidence that any action taken by Upper St. Clair officials at any time involved a discriminatory application of the zoning laws.

Although appellant has not challenged the constitutionality of appellee's zoning ordinance or made any claim that township officials have discriminated in applying the ordinance, appellant nonetheless sums up its position by stating: "[I]n its application this zoning ordinance, in a significant way operates to intensify segregation on the basis of race, ethnic background, age and wealth and therefore that ordinance is subject to close scrutiny ...

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