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decided: April 21, 1981.


Appeal from the Order of the Court of Common Pleas of York County in case of Edward B. Golla and Elizabeth M. Golla, his wife, and Edward C. Golla, Eric N. Golla and Gregory E. Golla, minors, by Edward B. Golla, their guardian v. Hopewell Township Board of Supervisors and Hopewell Township Zoning Hearing Board, No. 78-S-2922.


Gilbert G. Malone, Ports, Beers, Feldmann & Malone, for appellant, Hopewell Township Board of Supervisors.

John W. Thompson, with him William Poole, Shoemaker and Thompson, for appellant, Hopewell Township Zoning Hearing Board.

Edward B. Golla, for appellees.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr. and Palladino. Opinion by Judge Craig. This decision was reached before the expiration of the term of office of Judge Wilkinson, Jr. Dissenting Opinion by Judge Mencer. Judge MacPhail joins in this dissent. Dissenting Opinion by Judge Williams, Jr. Judge MacPhail Joins in Part I of This Dissent. Dissenting Opinion by Judge MacPhail.

Author: Craig

[ 58 Pa. Commw. Page 574]

Hopewell Township, in York County, has appealed from the Court of Common Pleas of York County, which held certain agricultural zone provisions of the Hopewell Township Zoning Ordinance (Ordinance) to be unconstitutional.

[ 58 Pa. Commw. Page 575]

In 1968, Edward B. Golla and Elizabeth M. Golla, husband and wife, purchased a 140-acre farm in Hopewell Township. On December 29, 1976, they conveyed a ten percent interest in their farm, "undivided but divisible on demand", to each of their three sons, with the understanding that the land would be permanently partitioned when a survey of the land was completed. They proposed to effect further conveyances of tracts of land of approximately ten acres or more to their sons and contemplated partitioning the 140-acre tract into seven, and possibly as many as fourteen parcels, each of which would contain ten or more acres.

However the township has stipulated that if the landowners attempted the contemplated partition, it would prosecute them under Section 203.2*fn1 of the Ordinance, limiting the residential subdivision of any tract in an agricultural zone to a "minor residential land development" of not more than five residential lots, together with Section 203.9*fn2 of that Ordinance,

[ 58 Pa. Commw. Page 576]

    limiting the size of each such residential lot to not more than 1 1/2 acres, unless not suitable for agriculture.

After the Hopewell Township Zoning Hearing Board (board) upheld the validity of those sections, the trial court found them to be invalid, by a three-to-two decision.

Judge Blakey, in his majority opinion, correctly introduced the issue by stating:

This case presents a classic confrontation between a basic property right of land owners, to convey their property to their children or others as they see fit, and a restriction of that right in what is declared to be in the public interest. . . .

[ 58 Pa. Commw. Page 577]

Ever since Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), it is clear that a restriction of private property rights by a zoning ordinance is proper when (a) the ordinance has a purpose that promotes the public health, safety or general welfare and (b) the means used to achieve that goal of the ordinance are substantially related to the end sought.

One challenging a zoning ordinance must bear the heavy burden of proving clearly and unmistakenly the unconstitutionality of the ordinance. Bilbar Construction Company v. Easttown Township Board of Adjustment, 393 Pa. 62, [141 A.2d 851] (1958); Benham v. Board of Supervisors of Middletown Township, 22 Pa. Commonwealth Ct. 245, [349 A.2d 484] (1975). To put it another way, a particular provision of a zoning ordinance must be clearly arbitrary and unreasonable and without substantial relation to public health, safety, or general welfare, before it can be declared unconstitutional.

We agree with the trial court and the board that the preservation of prime agricultural land is a sound, lawful and constitutional purpose of zoning regulations.*fn3 However, the method chosen here, actually a regulation of the subdivision of land, runs afoul of

[ 58 Pa. Commw. Page 578]

    current statutory and constitutional law. We agree with the trial court's conclusions as to the subdivision limitations here because

-- this regulation of subdivision flatly violates the enabling act; and

-- allowing only five residential lots per tract, without regard to the size of tracts, produces irrational results unrelated to lawful land use control purposes.

1. Violation of Subdivision Enabling Statute

The basic statutory power of Pennsylvania municipalities to regulate the subdivision of land is limited by these words:

Provided, however, That the division of land for agricultural purposes into parcels of more than ten acres, not involving any new street or easement of access, shall be exempted.

That provision, within the definition of "Subdivision" in Section 107(21) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10107(21), is a clear legislative exemption allowing what the landowners here call "farmettes," as small as just over ten acres each.

The landowners, in their formal statement to the zoning hearing board and their notice of appeal, definitely proposed agricultural purposes for their ten-acre tracts, as required by Suburban Group, Inc. v. Gittings, 22 Pa. Commonwealth Ct. 295, 348 A.2d 490 (1975).

Moreover, a conflict between the Ordinance and the statute is manifested by the Ordinance provision which allows a residential lot (larger than 1 1/2 acres) only if not suitable for agriculture, while the statutory exemption applies only where the division is created for agricultural purposes.

Here, although the questioned regulation is contained in an ordinance captioned as a zoning ordinance,

[ 58 Pa. Commw. Page 579]

    the label of the ordinance cannot affect the case because this ordinance is clearly one which seeks to control the subdivision of tracts into lots, precisely the definition of subdivision which is embodied in the MPC section cited above. Note also subsections (c) and (d) of § 203.9 of the Ordinance, quoted in footnote 2, which expressly apply to subdivision action as such.

Until the legislature amends the statutory expression of the public will, neither any municipal board nor this court, however laudable the aim, has any warrant to revise the legislative allowance of lot divisions of ten-acres-plus for agricultural purposes. Although earnest innovations in land use control approaches are commendable, this approach is ultra vires at present.

2. Irrational Results in Application

As stated above, we cannot disagree with the finding of the township board that the agricultural usage of land in the township is worthy of preservation.

However, one difficulty with Ordinance is highlighted by the board's twenty-third finding:

(23) Productivity of farms and efficiency of farming operations would be decreased by the division of productive farms into ten (10), twenty (20) or less than fifty (50) acre tracts and in addition, interfere with conservation practices.

Thus the board found that an agricultural parcel division of fifty acres or more would not violate the preservation policy. In addition to conflicting with the legislature's policy, as noted above, this finding casts much doubt upon the reasonableness of the Ordinance, which, in essence, provides that the minimum farm size in Hopewell Township shall be determined in relation to ...

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