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CATHERINE O'HEY YOH AND 1700 SANSOM STREET CORP. v. BOARD COMMISSIONERS WEST NORRITON TOWNSHIP (07/31/78)

decided: July 31, 1978.

CATHERINE O'HEY YOH AND 1700 SANSOM STREET CORP., APPELLANTS
v.
BOARD OF COMMISSIONERS OF WEST NORRITON TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Catherine O'Hey Yoh and 1700 Sansom Street Corporation v. Board of Commissioners of West Norriton Township, No. 76-4584.

COUNSEL

Lenard L. Wolffe, with him J. Barry Curtin, Stanley A. Uhr, and Pechner, Dorfman, Wolffe, Rounick & Cabot, for appellant -- Landowners.

Roger B. Reynolds, Jr., Associate Counsel, with him Russell J. Brownback, Solicitor, for appellee.

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

Author: Crumlish

[ 37 Pa. Commw. Page 92]

Catherine O'Hey Yoh and the 1700 Sansom Street Corporation (Appellants) are owners of 33 acres of land zoned Rural Residential (R-A) situated in West

[ 37 Pa. Commw. Page 93]

Norriton Township (Township), Montgomery County. The R-A zoning classification permits the development of single family detached dwellings on 40,000 square foot lots with a maximum allowable building coverage of 8,000 square feet per lot. This is the most restrictive use category within the Township's ordinance. Appellants desire to develop townhouses on these 33 acres.

The Township's zoning ordinance (Ordinance) does not provide for townhouse development and, in fact, precludes attached and semi-detached buildings as a permitted use.*fn1 Because of this prohibition, Appellants claim that the Township's ordinance is constitutionally defective and challenged it by way of Curative Amendment under Sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (Code).*fn2 The Curative Amendment calls for the development of 264 townhouse units on 33 acres with a gross density of eight units per acre.

Because the Township Commissioners failed to render a post-hearing decision, the application for curative amendment was deemed denied,*fn3 and Appellants appealed to the Court of Common Pleas. That court took no additional evidence and concluded that townhouse development was permitted within the Township's "A-Apartment House District," and that the Township's Ordinance, therefore, could not be declared to be exclusionary in purpose or effect. Appellant's

[ 37 Pa. Commw. Page 94]

    application for curative amendment, therefore, was denied.

In arriving at its decision, the lower court did not discuss the prohibitory language of the Township's Ordinance, but relied solely on the definition of "apartment" and "apartment house" contained within Chapter XV, Sections 15-18.1 w ...


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