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

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. ยง 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 ...


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