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FELIX CASTE v. ZONING HEARING BOARD WHITEHALL BOROUGH (12/14/82)

decided: December 14, 1982.

FELIX CASTE, APPELLANT
v.
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.

COUNSEL

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.

Author: 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 ...


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