No. 81-2-287, Appeal from the Order of the Commonwealth Court of Pennsylvania, dated April 21, 1981 to No. 2575 C.D. 1979.
Gilbert G. Malone, John W. Thompson, William Poole, York, for appellants.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Hutchinson, J., files a concurring opinion in which Nix, J., joins. Larsen, J., files a concurring and dissenting opinion. McDermott, J., files a dissenting opinion.
This is an appeal from an order of the Commonwealth Court which affirmed*fn1 an order of the Court of Common Pleas of the Nineteenth Judicial District holding certain agricultural preservation provisions of the Hopewell Township zoning ordinance to be invalid. The provisions in question establish the appellant Township's approach to achieving preservation of prime agricultural land through use of zoning power to limit the conversion of prime agricultural property to other uses.
The challenged provisions of the zoning ordinance provide, in pertinent part:
§ 203.2 Uses Permitted: No building or structure may be erected or used and no land may be used or occupied except for the following principal uses:
1. One-family dwelling on an approved lot in a minor residential land development or on an individual lot the dimensions of which have not changed since June 5, 1974.
§ 203.9 Regulations Involving Lots in a Minor Residential Land Development
a) Lots to be separated from the original tract shall not contain more than one and one-half (1 1/2) acres for each dwelling unit assigned to the tract being separated unless it is determined that the lot is not suitable for agricultural use.
e) Nothing contained in this section shall be interpreted to prevent a bona fide "farm" from adding adjacent ground to that farm.
(Emphasis added.) A "minor residential land development", for purposes of these sections, is defined in the ordinance as
"a residential land development consisting of five or fewer existing or proposed dwelling units." The definition of "residential land development" includes the limitation that "[i]n determining the number of lots in a residential land development all lots which on June 5, 1974 were a part of the same parcel shall be included." In essence, the ordinance permits an owner of a tract of land in the agricultural zone of Hopewell Township either to use the undivided tract as a farm having not more than one single-family dwelling or to establish as many as five contiguous residential lots each containing a single-family dwelling and having a maximum size of 1 1/2 acres.*fn2 The restrictions are not applicable to land that is "not suitable for agricultural use," such unsuitability to be determined by the presence of factors enumerated in the ordinance such as certain topographies or soil types. Hence, severance of lots larger than 1 1/2 acres may be had if the land to be severed is not suitable for agricultural use or if the land is severed for the purpose of transferring it to an adjacent farmer.
The appellees, Edward and Elizabeth Golla, owners of a 140 acre farm in Hopewell Township, sought to partition their farm into seven, and possibly as many as fourteen, parcels, each of which would comprise ten or more acres. It is proposed that each of these parcels would be used for agricultural purposes, and that each may be the site of a single-family dwelling. It is stipulated that should they attempt the proposed plan, the Township would prosecute the appellees for a violation of the Township zoning ordinance. Thus, being prevented from dividing their property as desired, appellees challenge the applicability of the ordinance to their proposal, and, in the alternative, the constitutionality of the ordinance.
Appellees contend that the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, art. I, § 101, 53 P.S.
§ 10101 et seq. (1972) (hereinafter MPC) expressly exempts tracts of agricultural land, containing ten or more acres, from zoning requirements. We disagree. Article V of the MPC grants municipalities the power to "regulate subdivisions and land developments . . ." 53 P.S. § 10501. In defining the term "subdivision" for purposes of the MPC, however, Article I states 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." 53 P.S. § 10107(21). The fact that such parcels of land are exempted from the definition of the "subdivisions" that may be regulated pursuant to Article V, however, does not infer that such parcels are to be exempted from the separate and distinct general power conferred by Article VI of the MPC, 53 P.S. § 10601, enabling municipalities to enact zoning regulations.
Sections 203.2 and 203.9 of the ordinance in question do not represent exercises of the power to regulate subdivisions but constitute, instead, applications of the zoning power. The distinction between regulations falling within the ambit of Article V, subdivision controls, and those within the purview of Article VI, zoning, lies in the nature of that which is sought to be regulated. Article V contemplates regulations governing the process of land development commencing with requirements for obtaining approval of subdivision plats. Subdivisions of land, for agricultural purposes, into parcels of ten or more acres were exempted from the scope of municipal regulatory authority under Article V in order to excuse such subdivisions from compliance with the requirement of filing, for approval, plats setting forth proposed subdivisions. As derived from that Article, the purpose for the requirement of obtaining plat approval is to insure compliance with requirements set forth by the municipality in pursuit of planning goals.*fn3 In contrast, Article VI
provides for regulation of the areas of land that may be ...