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J. RICHARD FRETZ AND ELIZABETH FRETZ v. HILLTOWN TOWNSHIP BOARD SUPERVISORS (05/21/79)

decided: May 21, 1979.

J. RICHARD FRETZ AND ELIZABETH FRETZ, HIS WIFE, APPELLANTS
v.
HILLTOWN TOWNSHIP BOARD OF SUPERVISORS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of J. Richard Fretz and Elizabeth Fretz, h/w v. Hilltown Township Board of Supervisors, No. 77-8147-08-5.

COUNSEL

J. Richard Fretz, petitioner, for himself.

Charles S. Wilson, with him David MacFarland, for respondent.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 43 Pa. Commw. Page 5]

This case presents an appeal from an order of the Court of Common Pleas of Bucks County which sustained a decision of the Hilltown Township Board of Supervisors (Board) rejecting appellants' proposed curative amendment to the applicable zoning ordinance of Hilltown Township (Township). We affirm.

Appellants are the owners of a tract of land consisting of approximately 68 acres. Since its purchase in 1972, appellants' land has been located in an area designated "R-50 Residential and Agricultural District" under the applicable zoning ordinance.*fn1 Single-family

[ 43 Pa. Commw. Page 6]

    detached dwellings situated on lots of at least 50,000 square feet constituted the only permissible residential use in the R-50 district.

On April 18, 1977, appellants filed an application for a curative amendment pursuant to Sections 609.1 and 1004(1)(b) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยงยง 10609.1, 11004(1)(b). The application proposed the creation of an "R-T Residential District" in which the only permitted residential use would be semi-detached dwellings of the sort commonly known as twin homes. The Board rejected appellants' application on July 25, 1977 following a hearing on the matter. Appellants have brought the present appeal following an affirmance of the Board's determination by the common pleas court.

A duly enacted zoning ordinance carries with it a presumption of validity and the burden on one to sustain a substantive challenge is heavy. We are convinced after a thorough review of the record that appellants have failed to shoulder this burden.

Appellants assert, as the basis of their substantive challenge to the existing ordinance, a failure to provide for twin home construction anywhere in the Township. Alternatively, it is urged that even if twin homes are permitted by the ordinance's literal terms the area conceivably allotted to such use is so miniscule as to be tantamount to an outright exclusion. Willistown Township v. Chesterdale Farms, Inc., 7 Pa. Commonwealth Ct. 453, 300 A.2d 107 (1973), aff'g by an equally divided court, aff'd in part and modified in part, 462 Pa. 445, 341 A.2d 466 (1975).

Guidance for the evaluation of appellants' arguments is found in this Court's opinion in Benham v. Board of Supervisors, 22 Pa. Commonwealth Ct. 245, 349 A.2d 484 (1975). With respect to appellants' ...


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