Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Ivan W. Martin v. Township of Millcreek, No. 3271, 1977.
David J. Brightbill, of Siegrist, Koller & Brightbill, for appellant.
Robert C. Rowe, for appellee.
Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig. President Judge Bowman did not participate in the decision in this case.
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The issue in this case is the validity of a ten acre minimum one-family lot size established by the Millcreek Township Zoning Ordinance provisions applicable to an E-1 "Ecogically Sensitive District", covering one-third of the area of that semi-rural township, which elsewhere requires a one-acre minimum lot area per family.
This zoning appeal is from a decision of the Common Pleas Court of Lebanon County which upheld
[ 50 Pa. Commw. Page 251]
the refusal of the Millcreek Township Board of Supervisors (township) to adopt a curative amendment by which landowner Ivan W. Martin (owner) had attacked the ten-acre minimum under Section 1004 of the Pennsylvania Municipalities Planning Code (MPC) Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004. The owner seeks to subdivide his 160-acre tract by selling off 1.34 acres for residential use.
As summarized by the court below, the owner's constitutional attack upon the ten acre minimum has three facets: (1) The provision does not bear a substantial relationship to police power purposes, (2) it is exclusionary, and (3) it is unreasonable, arbitrary and confiscatory.
The curative amendment proceedings concluded with the township's refusal to adopt the curative amendment or any other revision. On appeal to the court, the parties presented evidence de novo.
As to the ten-acre minimum, the owner's evidence included expert real estate opinion that 70 percent of residence buyers could not afford that much land as a base for a dwelling. The township's specific evidence consisted of a letter written by an employee of the Pennsylvania Department of Environment Resources, noting that the E-1 area has a groundwater problem.
Because the attack here is multi-pronged, a preliminary review of our minimum area requirement cases can illuminate the importance of identifying the different constitutional issues which have been raised in cases of this kind.
Our Supreme Court recited the several fundamental inquiries at the beginning of Justice Nix's opinion in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977), by stating:
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In reviewing zoning ordinances, this Court has stated that an ordinance must bear a substantial relationship to the health, safety, morals, or general welfare of the community. National Land and Investment Co. v. Easttown Twp. Bd. of Adjustment, 419 Pa. 504, 522, 215 A.2d 597, 607 (1965), citing, inter alia, Glorioso Appeal, 413 Pa. 194, 196 A.2d 668 (1964). Thus, without expressly labeling it as such, this Court has employed a substantive due process analysis in reviewing zoning schemes and has concluded implicitly that exclusionary or unduly restrictive zoning techniques do not have the requisite ...