Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Appeal of Kasorex, a Partnership, from the decision of the Board of Supervisors of Montgomery Township, No. 80-11921.
William R. Cooper, with him, Emory W. Buck, Cooper & Greenleaf, for appellant.
Jules Pearlstine, with him Ronald E. Robinson, Pearlstine, Salkin, Hardiman and Robinson, for appellee.
Thomas L. Wenger, with him Thomas W. Bergen, Wix, Wenger & Weidner, for Amicus Curiae, Pennsylvania State Association of Township Supervisors.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Craig.
[ 70 Pa. Commw. Page 194]
When the courts have held a municipality's zoning ordinance invalid because it has unlawfully excluded one class of residential use, does that decision nullify the entire zoning ordinance, leaving the municipality wholly without zoning, so that all other kinds of residential, commercial or industrial development (not involved in the exclusionary zoning holding) may proceed free of all zoning regulations?
[ 70 Pa. Commw. Page 195]
Can the municipality cure the invalidity by adopting zoning ordinance amendments or only by proceeding to re-enact its zoning in its entirety over the entire municipality?
As will be seen, these are questions of first impression.*fn1
These issues arise in this case because Kasorex, a development partnership, claims the right to build a substantial number of quadruplex dwellings and twin homes on 366 acres in Montgomery Township, Montgomery County, on the basis that all zoning in that township was wiped out by McKee v. Township of Montgomery, 26 Pa. Commonwealth Ct. 487, 364 A.2d 775 (1976), affirming a common pleas order holding the Montgomery Township Zoning Ordinance unconstitutional and null and void "as it pertains to the exclusion of mobilehome parks." Although the township, after the McKee decision, adopted zoning amendments making express provision for the allowance of mobilehome parks, Kasorex contends that no amendment, no matter how comprehensive, could restore legally effective zoning in the township, but that only the preparation and enactment of a zoning ordinance anew, under Sections 607 and 608 of the Pennsylvania Municipalities Planning Code (MPC),*fn2 could do so, and that, until such action is taken,
[ 70 Pa. Commw. Page 196]
Kasorex's multiple dwellings are subject to no zoning regulations.*fn3
After the Montgomery Township supervisors refused to grant subdivision approval to Kasorex for its multiple dwellings, Kasorex appealed from that refusal to the Court of Common Pleas of Montgomery County, not upon the ground that the Montgomery Township zoning was exclusionary as to its proposed multiple dwellings, but upon the ground that the Montgomery Township Zoning Ordinance did not exist. The common pleas court agreed and ordered the issuance of the requested development approval.
As essential background, we quote the common pleas court order affirmed by this court in the McKee case, which read as follows:
AND NOW, this 25th day of July, 1975, . . . the court finds the Montgomery Township Zoning Ordinance of 1952, as amended, to be unconstitutional and, thus, null and void as it pertains to the exclusion of mobilehome parks. It is directed that a building permit as to a mobilehome park be issued the appellants as to the property in question . . . when and if they are in full compliance with all other valid ordinances and regulations of the township and with all other applicable laws of the Commonwealth of Pennsylvania with regard to the proposed development of a mobilehome park. . . . (Emphasis supplied.)
On its face, this court order was inconclusive as to the point in question. Although the statement that the
[ 70 Pa. Commw. Page 197]
mobilehome park development would remain subject to "all other valid ordinances and regulations" could be read as indicating no need to comply with any other elements of the zoning ordinance, the order also clearly found the zoning ordinance to be unconstitutional and void "as it pertains to the ...