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APPLICATION DAVID C. AND PAMELA B. WETHERILL. WEST NANTMEAL TOWNSHIP (08/31/79)

decided: August 31, 1979.

IN RE: APPLICATION OF DAVID C. AND PAMELA B. WETHERILL. WEST NANTMEAL TOWNSHIP, APPELLANT


Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Application of David C. and Pamela B. Wetherill, No. 43 February Term, 1977.

COUNSEL

Ronald C. Nagle, with him Buckley, Nagle & McGuire, for appellant.

Patrick C. O'Donnell, with him John E. Good, for appellees.

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

Author: Blatt

[ 45 Pa. Commw. Page 304]

West Nantmeal Township (Township) appeals here from an order of the Court of Common Pleas of Chester County which held that the Township's zoning ordinance was unconstitutional.

The appellees, David and Pamela Wetherill, proposed curative amendments to the ordinance alleging that it was exclusionary (1) in its failure to provide for apartment buildings and (2) in that the minimum acre requirement for single homes was so high as to fail to provide for the Township's "fair share of anticipated regional housing requirements."

After hearings, the Board of Supervisors of the Township (Board) entered a report containing findings of fact and conclusions of law and determined

[ 45 Pa. Commw. Page 305]

    that the ordinance was not exclusionary nor unconstitutional and rejected the proposed amendments. The court below concluded that the Board's findings of fact were not supported by substantial evidence and reversed its decision. This appeal followed.

With respect to the exclusion of apartment buildings, the court found that, although the ordinance defined "apartment building," it failed to provide for any in any district. It rejected the Township's argument that an apartment was equivalent to a townhouse and could therefore be built in a townhouse district. It therefore concluded that there was a total ban on the use of land in the Township for apartments. Such a total exclusion the court below correctly held to be unconstitutional. See Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970).

With respect to the 10-acre minimum lot size we must first note that minimum lot sizes are not unconstitutional per se. See DeCaro v. Washington Township, 21 Pa. Commonwealth Ct. 252, 344 A.2d 725 (1975). As our Supreme Court has said in Concord Township Appeal, 439 Pa. 466, 471, 268 A.2d 765, 767 (1970), "[A]bsent some extraordinary justification, a zoning ordinance with minimum lot sizes such as those in this case [two and three acre minimums] is completely unreasonable." In a more recent case, Surrick v. Zoning Hearing Board, 476 Pa. 182, 382 A.2d 105 (1977), the Supreme Court laid down a series of tests for determining whether or not zoning regulations are exclusionary. "The initial inquiry must focus upon whether the community in question is a logical area for development and population growth. . . . The community's ...


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