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decided: June 1, 1978.


Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Herman Silver from Decision of Upper Southampton Board of Supervisors Denying Curative Amendment Application, No. 74-9254-04-5.


Richard P. McBride, with him Power, Bowen & Valimont, for appellant.

Theodore K. Warner, Jr., with him Robert C. Steiger, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 35 Pa. Commw. Page 570]

Herman Silver has appealed from a decision of the Bucks County Court of Common Pleas which upheld the constitutionality of the Upper Southampton Township Zoning Ordinance of 1972 and refused Silver's request for curative amendment. We affirm.

Herman Silver owned approximately 133 acres of land in Upper Southampton Township. The tract is located in the "R-2 Residential" zoning district in which the construction of single-family detached houses on lots of not less than 20,000 or 12,000 square feet, depending on the configuration of the development, is a permitted use. Silver and a transferee developed all of the 133 acres in single-family detached dwellings, except for a 25.5 acre piece in the center of the tract. Silver then proposed to develop the remaining 25.5 acres in multi-family dwellings which are not permitted in the R-2 Residential District but which are permitted in the R-4 and R-5 Residential Districts.

On December 5, 1972, Silver submitted a curative amendment application to the Board of Supervisors of Upper Southhampton Township pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004, challenging the substantive validity of the Upper Southampton Township Zoning Ordinance on the ground that it made only token provision for multi-family development within the township. Silver proposed that the ordinance be amended to change the zoning classification of his 25.5 acre parcel from R-2 Residential to R-5 Residential. His development plan as originally submitted proposed the construction of 98 one and two bedroom duplex apartments and 113 two and three bedroom townhouse units. After twelve

[ 35 Pa. Commw. Page 571]

    evenings of hearings which commenced on January 23, 1973 and concluded on August 6, 1974, the Board of Supervisors rejected the curative amendment application on September 3, 1974 in an opinion supported by its findings of fact and conclusions of law. Silver appealed this action to the Bucks County Court of Common Pleas which took no additional evidence. The court below, in a thorough and able opinion by the Honorable John Justis Bodley dated March 17, 1976, affirmed the decision of the Board of Supervisors and it is from that decision that Silver has appealed to this Court.

Silver asserts that the Upper Southampton Township Zoning Ordinance results in a de facto exclusion of multi-family dwelling units because the area zoned for multi-family use is so small a percentage of the total area of the township that it constitutes a mere token response to the directive of the Pennsylvania Supreme Court in exclusionary zoning cases such as Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), that municipalities provide a "fair share" of the region's present and prospective need for low and moderate income housing. The most recent of the many cases in which the charge of tokenism has been used to challenge a township's zoning ordinance is Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977). In Surrick, supra, the Supreme Court reviewed many of the exclusionary zoning cases previously decided to arrive at an analytical method to be used by courts in the future to aid them in their review of zoning ordinances which are alleged to be exclusionary. To analyze a case by this method, the reviewing court uses the facts of the case to answer inquiries focused on factors which have previously been held to be relevant in determining whether a zoning ordinance effects an unconstitutional exclusion

[ 35 Pa. Commw. Page 572]

    of a particular land use. The reviewing court then weighs the results of these inquiries to arrive at its conclusion as to the validity of the particular ordinance. We will now proceed to answer the inquiries outlined in Surrick, supra, by examining the factual circumstances which existed in Upper Southampton Township at the time this challenge was made. We note that while it can be argued that the Board of Supervisors and the court below might on the record made, have found the facts otherwise than they did, the findings they made are supported by substantial evidence. We therefore use these facts in our analysis. In doing so we are mindful that a zoning ...

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