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BOARD SUPERVISORS NORTHAMPTON TOWNSHIP v. HERMAN L. GENTSCH (05/21/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 21, 1980.

BOARD OF SUPERVISORS OF NORTHAMPTON TOWNSHIP, APPELLANT
v.
HERMAN L. GENTSCH, JR., APPELLEE

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Herman L. Gentsch, Jr. v. Board of Supervisors of Northampton Township, No. 78-065-08-5.

COUNSEL

Theodore K. Warner, Jr., with him, Robert C. Steiger, for appellant.

Gary A. Krimstock, of Clark, Ladner, Fortenbaugh & Young, for appellee.

Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Judge Blatt did not participate. Opinion by Judge MacPhail.

Author: Macphail

[ 51 Pa. Commw. Page 456]

Herman L. Gentsch, Jr. (Appellee) filed an Application for Curative Amendment*fn1 with the Board of Supervisors of Northampton Township (Board) challenging

[ 51 Pa. Commw. Page 457]

    the township zoning ordinance because apartments were not provided for as a matter of right. The amendment proposed by the appellee would establish an R-4 district in which townhouses, garden apartments and mid-rise apartments*fn2 are permitted uses. The application further sought rezoning of a 45-acre tract, owned by Appellee, to R-4. The Board denied the request and Appellee filed an appeal to the Court of Common Pleas of Bucks County.

The lower court held that the Appellee had shown that mid-rise apartments constitute a separate residential usage and that the township's failure to provide for mid-rise apartments constitutes exclusionary zoning. The lower court upheld that Board's denial of the portion of the proposed amendment that sought townhouses and garden apartments because it found that such uses are provided for in the township ordinance. The court remanded the matter for issuance of permits as to the mid-rise apartments.

Appellee has not filed an appeal from the denial of townhouses and garden apartments. The Board appeals herein from the finding that the failure to provide for mid-rise apartments constitutes exclusionary zoning. We reverse.

The issues presented for our determination are 1) whether the Application for Curative Amendment reasonably informed the Board that the matter at issue included exclusion of mid-rise apartments, 2) whether mid-rise apartments are a separate classification of residential usage so that the failure to provide for such use constitutes exclusionary zoning, and 3) whether the lower court was required by Section 1011 of the Code, 53 P.S. § 11011, to make certain specific findings before declaring the township ordinance invalid.

[ 51 Pa. Commw. Page 458]

The lower court held that mid-rise apartments are a recognized residential usage and must be provided for in a township ordinance if the ordinance is to pass constitutional muster. We cannot agree.

The rationale of the prohibition on exclusionary zoning may be stated as follows: a zoning ordinance must not have the effect of excluding persons and prohibiting their reasonable residential use of land. Municipalities cannot avoid the problems of a growing population by drafting zoning ordinances that are so restrictive as to maintain present population levels. Township of Willistown v. Chesterdale Farms, Inc., 462 Pa. 445, 341 A.2d 466 (1975). Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970).

The thrust of Appellee's argument to the Board was that the township ordinance was defective because apartment use was not provided for as a matter of right, but only as Planned Residential Development. This contention is clearly wrong, Benham v. Middletown Township Board of Supervisors, 22 Pa. Commonwealth Ct. 245, 349 A.2d 484 (1975), and was rejected by both the Board and the lower court.*fn3

The Appellee shifted the emphasis of his argument and contended before the lower court that mid-rise apartments are a separate and distinct usage and cannot be excluded.

This position, however, ignores the clear statement in Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), that a municipality can protect its attractive character by imposing reasonable height restrictions on apartment use. Id. at 245, 263 A.2d at 399.

[ 51 Pa. Commw. Page 460]

It is significant to note, and the Board does not dispute, that because the provisions of a zoning ordinance must be designed to protect such interests as public health, safety, and morals, Section 604 of the Code, 53 P.S. § 10604, a height restriction that serves no such purpose may be subject to legal attack. Pittsburgh v. Elman Associates, Inc., 6 Pa. Commonwealth Ct. 1, 291 A.2d 813 (1972). Therefore, a landowner whose property is zoned for apartment use may challenge the reasonableness of a height restriction as applied to that property, but a height restriction will not subject a zoning ordinance to a challenge of its validity because of exclusion of a residential use whose only distinguishing feature is height. "That a specific type of apartment structure is not permitted in no way allows the inference that the township improperly excludes a lawful use of property." Csink v. Whitpain Township, 106 Montg. 411 (1979), affirmed, 51 Pa. Commonwealth Ct. 149, 414 A.2d 405 (1980).

Further support for the proposition that a zoning ordinance may regulate the height of apartment buildings is found in cases dealing with townhouses. It is clear that a zoning ordinance which fails to provide for townhouses is invalid. Camp Hill Development Co. v. Zoning Board of Adjustment, Borough of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974). Nonetheless, it is also clear that a township may regulate the density of townhouses usage to avoid congested row housing. Dublin Properties v. Upper Dublin Township, 21 Pa. Commonwealth Ct. 54, 342 A.2d 821 (1975). It would seem evident, therefore, that a township may regulate the type of apartment use once it has reasonably provided for such use.

Although, as we have noted, the issue of mid-rise apartments as a separate use was fully litigated before the Board, no specific findings were made on the

[ 51 Pa. Commw. Page 461]

    issue. While it might appear at first blush that a remand is necessary to allow the Board to enter findings on mid-rise apartments as a separate use, a careful analysis of the question demonstrates that such a finding is not needed.

This decision underlines the rule of law enunciated by Girsch, supra, i.e. where a township has provided for apartment use, reasonable height restrictions may be imposed. Id. at 245, 263 A.2d at 399. Therefore, a zoning ordinance is not invalid as exclusionary where mid-rise apartments are not provided for as a matter of right.

The Board's findings are supported by substantial evidence and their conclusion that the township ordinance is constitutional is quite correct. Since the Board has refused to rezone Appellee's land, there is no basis for remand to determine whether the height restrictions would be valid as applied to his land. The Board considered whether the township zoning ordinance excluded apartments and found that it did not. Our holding herein makes it unnecessary for the Board to enter findings on mid-rise apartments since the outcome of the case would not be affected thereby.

Due to our resolution of these issues, we need not reach the issue raised concerning Section 1011 of the Code, 53 P.S. § 11011.

Order

And Now, this 21st day of May, 1980, the order of the Court of Common Pleas of Bucks County, dated February 5, 1979, is affirmed insofar as it sustains the validity of the ordinance as to apartments generally, but is reversed insofar as it finds that the ordinance is invalid because it does not provide for mid-rise apartments.

Disposition

Affirmed in part and reversed in part.


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