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APPEAL M.A. KRAVITZ CO. (09/05/80)

decided: September 5, 1980.

IN RE: APPEAL OF M.A. KRAVITZ CO., INC., FROM DENIAL OF CURATIVE AMENDMENT APPLICATION BY THE BOARD OF SUPERVISORS OF WRIGHTSTOWN TOWNSHIP. M.A. KRAVITZ CO., INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of M.A. Kravitz Co., Inc. from Denial of Curative Amendment Application by the Board of Supervisors of Wrightstown Township, No. 77-12230-04-5.

COUNSEL

Richard P. McBride, Power, Bowen & Valimont, for appellant.

Terry W. Clemons, Clemons & Klimpl, for appellee.

President Judge Crumlish and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by President Judge Crumlish.

Author: Crumlish

[ 53 Pa. Commw. Page 623]

M.A. Kravitz Company appeals a Bucks County Common Pleas Court order affirming the Wrightstown Township Board of Supervisors' denial of a curative amendment which challenged the Township's zoning ordinance on constitutional grounds for failing to provide for townhouse development. We reverse and remand.

On May 7, 1975, Kravitz submitted a curative amendment application*fn1 proposing that a 612 unit single-family attached (townhouse) dwelling development be authorized on its 98-acre tract in Wrightstown

[ 53 Pa. Commw. Page 624]

Township, which is zoned "R-2 Residential" for single-family detached dwellings. The basis for the Kravitz challenge was the unconstitutional exclusion of townhouse construction and, alternatively, de facto exclusion by virtue of only token provision for the subject development, assuming for both arguments that the multi-family district provided by the zoning ordinance allows townhouse in addition to apartment development.*fn2

Following extensive hearings, the Township's Board of Supervisors denied the curative amendment, found not only that the R-4 multi-family district permits residential townhouse development but that the ordinance contemplates adequate housing in relation to population growth, and held it not de facto exclusionary. On appeal, the Bucks County Common Pleas Court affirmed the Board's decision, concluding that there was no material difference between the inclusion of townhouses as "multiple dwellings" in Benham v. Middletown Township Board of Supervisors,

[ 53 Pa. Commw. Page 62522]

Pa. Commonwealth Ct. 245, 349 A.2d 484 (1975), and the "multi-family dwellings" found in the Wrightstown Township zoning ordinance.

Confronted with a growing number of cases concerning restricted townhouse development, we have endeavored to set standards by which zoning ordinances can be evaluated for exclusionary provisions. Townhouses have clearly become an established and accepted form of residential development, recognized as little more than an embellished, individualistic form of "rowhouse," Camp Hill Development Co. v. Zoning Board of Adjustment, Borough of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974), and zoning ordinances which prohibit them throughout the entire municipality are unconstitutional. Ellick v. Board of Supervisors, Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975). The challenger of such an ordinance bears the heavy burden of proving either a de jure exclusion by showing that the ordinance on its face bans townhouse development, or de facto exclusion by showing that the ordinance effectively prohibits townhouse use throughout the municipality, even though the ordinance facially permits that use. Benham v. Middletown Township Board of Supervisors, supra. The burden then shifts to the municipality to show that the exclusion, in fact, bears "a more ...


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