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BLUE RIDGE REALTY AND DEVELOPMENT CORPORATION AND AMERICAN SANITARY SALES AND SERVICE CO. v. LOWER PAXTON TOWNSHIP (05/14/80)

decided: May 14, 1980.

BLUE RIDGE REALTY AND DEVELOPMENT CORPORATION AND AMERICAN SANITARY SALES AND SERVICE CO., INC., APPELLANTS
v.
LOWER PAXTON TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Blue Ridge Realty and Development Corporation and American Sanitary Sales and Service Co., Inc. v. Lower Paxton Township, No. 335 S 1979.

COUNSEL

Jeffrey E. Piccola, Berman, Boswell, Snyder & Tintner, for appellants.

Bernadette Boratlini, with her Richard Wix, of Wix, Wenger & Weidner, for appellee.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by President Judge Crumlish.

Author: Crumlish

[ 51 Pa. Commw. Page 351]

This zoning appeal is before this Court on an appeal from a decision of the Dauphin County Common Pleas Court. The zoning hearing board of Lower Paxton Township upheld the validity of Township Ordinance No. 76-12 and was affirmed by the court below. The undisputed facts are as follows.

Blue Ridge Realty and Development Corporation (Blue Ridge) purchased the subject 51-acre tract of land in 1973. The property at the time was zoned R-3. Subsequent negotiations resulted in a rezoning of the property to R-2, permitting a maximum of eight units per acre. Final plan approval was obtained for the construction of 350 townhouses. When Blue Ridge posted the required bond for the planned construction, a building permit was issued on February 24, 1975. Work on the project commenced by pouring concrete footers for one of the 72 projected buildings. No further work was ever done and on July 12, 1976, the township adopted the challenged ordinance rezoning the subject tract to R-1 single family permitting a maximum of three units per acre. Township, in equity, sought to revoke the Blue Ridge outstanding building permit and to declare its approval of the townhouse plan null and void. The final decree declaring the building permit to be null and void was not appealed.

Blue Ridge appeals to us pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code*fn1 contending that the ordinance is invalid since its enactment bears no relation to the public health, safety and welfare in violation of the township's comprehensive plan for orderly land development in the community. Furthermore, it contends that the ordinance

[ 51 Pa. Commw. Page 352]

    constitutes an arbitrary and unconstitutional exercise of spot zoning.

In reviewing the constitutionality of zoning ordinances, our Supreme Court has instructed that an ordinance must bear a substantial relationship to the health, safety, morals or general welfare of the community and that exclusionary or unduly restrictive zoning techniques do not have the requisite substantial relationship to the public welfare. Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977). Because ordinances enjoy a presumption of validity, the challenger to its constitutionality has the burden of proving that the ordinance was not related to the public health, safety or welfare. Fox Chapel Borough Appeal, 33 Pa. Commonwealth Ct. 256, 381 A.2d 504 (1978).

In restricting its density regulations in the rezoned area, the township sought to achieve, among other ...


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