decided: December 14, 1982.
FELIX CASTE, APPELLANT
ZONING HEARING BOARD OF WHITEHALL BOROUGH, BOROUGH OF WHITEHALL AND CONCERNED TAXPAYERS OF WHITEHALL, APPELLEES
Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Felix Caste v. Zoning Hearing Board of Whitehall Borough v. Borough of Whitehall v. Concerned Taxpayers of Whitehall, No. SA 748 of 1981.
Victor R. Delle Donne, Baskin and Sears, P.C., for appellant.
James R. Duffy, for appellee, Borough of Whitehall.
T. J. Kratzenberg, Kratzenburg & Shields, P.C., for appellee, Concerned Taxpayers of Whitehall.
President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.
[ 70 Pa. Commw. Page 369]
Felix Caste (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County which affirmed the decision of the Zoning Hearing Board of the Borough of Whitehall (Board) denying Appellant's constitutional challenge to the Borough's zoning ordinance. We affirm.
Appellant is the owner of a 13.12-acre tract on which he proposes to construct two high-rise apartment buildings with approximately 210 apartment units per building. The property is currently zoned R-6, a residential district in which high-rise apartments*fn1 which meet certain density and dimensional requirements are a permitted use. The proposed
[ 70 Pa. Commw. Page 370]
buildings would be similar to two existing apartment buildings which are located on adjacent ground and were also developed by Appellant. The proposed buildings do not meet the density requirements of the Borough ordinance.*fn2
Appellant filed a challenge to the constitutionality of the ordinance with the Board pursuant to Sections 910 and 1004(a) of the Pennsylvania Municipalities Planning Code.*fn3 Appellant argues that the ordinance is unduly restrictive and/or exclusionary due to its failure to provide a "fair share" of multi-family dwellings.*fn4 The Board held numerous hearings on the challenge, after which it upheld the constitutionality of the ordinance. On appeal, the court of common pleas, without taking additional evidence, affirmed the Board's decision. Appellant subsequently perfected his appeal to this Court.
Our scope of review where, as here, the court of common pleas has affirmed the Board without taking additional testimony is to determine whether or not the Board committed an abuse of discretion or an error of law. Villa, Inc. v. Zoning Hearing Board, Old Forge Borough, 57 Pa. Commonwealth Ct. 221, 426 A.2d 1209 (1981). It also bears repeating that a zoning ordinance carries a presumption of constitutionality and anyone challenging its validity has a heavy burden of proof. Ellick v. Board of Supervisors, Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975).
[ 70 Pa. Commw. Page 371]
The first issue presented to us is whether or not the Board erred in concluding that the ordinance is not unduly restrictive. It is clear that a zoning ordinance can be invalid if "the severity of its restrictive impact on the owner of the regulated property is unjustified for police power purposes. . . ." Martin v. Township of Millcreek, 50 Pa. Commonwealth Ct. 249, 252, 413 A.2d 764, 765 (1980). Specifically, Appellant challenges three restrictions in the ordinance: a ten acre minimum lot size, the minimum square feet of lot area required per apartment unit and a density formula which limits overall density to forty-five persons per gross acre.
Turning first to the minimum lot size requirement, the constitutionality of such a requirement must be determined on a case-by-case basis. Hess v. Upper Oxford Township, 17 Pa. Commonwealth Ct. 399, 332 A.2d 836 (1975). We are unable to conclude from the record before us that the ten acre minimum is so unreasonable, as applied to a high-rise apartment use, that it invalidates the ordinance. Cf. Christ United Methodist Church v. Municipality of Bethel Park, 58 Pa. Commonwealth Ct. 610, 428 A.2d 745 (1981) (five acre minimum lot size found to be unduly restrictive as applied to a group home use). This is particularly true since we agree with the Board's conclusion that the ten acre minimum does not itself limit the number of buildings which may be constructed on one ten acre lot. While ten acres are required as a minimum to undertake high-rise apartment construction, we believe that more than one building may be constructed on a ten acre lot so long as the applicable density and bulk requirements are satisfied.*fn5
[ 70 Pa. Commw. Page 372]
Appellant also challenges the restrictions on density which are provided in the ordinance. In this regard Appellant produced expert testimony that the square feet of the lot area required per apartment unit was unduly restrictive*fn6 and that the ordinance formula for calculating density was inappropriate. The density formula provides that overall density, which may not exceed forty-five persons per acre, must be calculated at a rate of 2.4 persons per apartment unit. Appellant's expert testified that the 2.4 persons per apartment unit figure was too high and would require that excessive amounts of land be devoted to each dwelling unit which, in turn, would inflate the cost of the units. The Borough produced its own expert testimony, however, that the density standards are reasonable and are related to the police power purposes of preventing the overcrowding of land and of minimizing the impact of this higher-density housing on the surrounding single-family residences.
After a careful review of the record, we conclude that the Board did not err in finding that the restrictions are not unduly restrictive. We note that much of the testimony of Appellant's witnesses proves only that this ordinance is more restrictive than others which the witnesses had reviewed. We think that such comparative evidence, while not without force, tends to overlook the essential issue in this case, to wit, the unique conditions in this municipality which may or may not act to justify a particular restriction. We conclude that the Appellant has failed to meet his
[ 70 Pa. Commw. Page 373]
heavy burden of proving the constitutional invalidity of the restrictions here challenged.
Appellant next argues that the ordinance, if not unduly restrictive, is exclusionary by reason of its failure to provide a "fair share" of multi-family dwellings. Our Supreme Court in Surrick v. Zoning Hearing Board of the Township of Upper Providence, 476 Pa. 182, 382 A.2d 105 (1977) set forth a three-part analysis to be employed where a "fair share" challenge is made. The court must determine 1) whether the community is a logical area for development and population growth, 2) the present level of development in the community, and 3) whether the challenged zoning scheme effects an exclusionary result or manifests an intent to zone out natural growth.
Regarding the first factor, we think the Borough of Whitehall is a logical area for development. We note that the Borough is in close proximity to the City of Pittsburgh and, in fact, abuts the City along a portion of its northern border. Moreover, the fact that the Appellant desires to construct additional apartment units is a strong indication that the area is a logical one for growth. See Villa, Inc.
Concerning the present level of development in the Borough, the record informs us that the Borough is 87.87% developed. Of the approximately 116 acres available for multi-family use in the Borough, approximately 26% remains undeveloped. Thus, we conclude that the Borough continues to be a developing community.
Turning to the final inquiry, to wit, whether multi-family housing is unconstitutionally excluded from the Borough, the record indicates that 5.71% of all Borough land is zoned for multi-family dwellings. Of the land remaining undeveloped in the Borough, approximately 13% is located in zones which permit multi-family
[ 70 Pa. Commw. Page 374]
housing.*fn7 Furthermore, multi-family dwellings constitute approximately 27%*fn8 of the current housing stock and are projected to reach 31% when the Borough is completely developed. We conclude, based on these facts that the ordinance is not exclusionary and provides its fair share of multi-family dwellings. Cf. Silver Appeal, 35 Pa. Commonwealth Ct. 569, 387 A.2d 169 (1978) (ordinance found to be non-exclusionary where 3.5% of total land was zoned for multi-family dwellings and where multi-family units constituted 11% of total housing stock).
It is ordered that the order of the Court of Common Pleas of Allegheny County, dated November 2, 1981, Case No. SA 748 of 1981, is hereby affirmed.