No. 81-3-372, Appeal from Order of the Commonwealth Court of Pennsylvania dated September 5, 1980 at No. 1283 C.D. 1978 reversing an Order of the Court of Common Pleas of Bucks County Civil Action, Law - entered at No. 77-12230 affirming the decision of the Board of Supervisors of Wrightstown Township
Terry W. Clemons, Doylestown, for appellant.
Richard P. McBride, Doylestown, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Flaherty, J., concurred in the result. Nix, J., filed a dissenting opinion in which Larsen, J., joined. Hutchinson, J., filed a dissenting opinion.
This is an appeal from a decision of the Commonwealth Court, reversing the decision of the Court of Common Pleas of Bucks County, which had affirmed the Board of Supervisors of Wrightstown Township in its finding that the Township Zoning Ordinance of 1971 was not exclusionary. The appellee, M.A. Kravitz Co., Inc., petitioned the Board on May 7, 1976 for a curative amendment to the Zoning Ordinance and approval of a proposed townhouse development on a 96 acre parcel of land which it owned. The land is located in an area zoned R-2 Residential, permitting only single-family dwellings. The basis for Kravitz's substantive challenge was the Ordinance's alleged unconstitutional exclusion of townhouses. Kravitz also made the alternative argument that even if the Ordinance did not totally exclude townhouse development, it resulted in a de facto exclusion because it made only token provision for such development.
The Board denied the amendment, finding that the Ordinance provided for townhouses in the area zoned R-4 Residential, permitting multi-family dwellings.*fn1 The Board also
found that, applying the factors used in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977), the Ordinance did not amount to a de facto exclusion, and that the Township provided for its "fair share" of population growth.
The Court of Common Pleas of Bucks County, without taking additional evidence, affirmed the Board's decision.
The Commonwealth Court reversed and directed approval of the proposed development. M.A. Kravitz Co., Inc. Appeal, 53 Pa. Commw. 622, 419 A.2d 227 (1980). In finding the Wrightstown Township Zoning Ordinance to be unconstitutionally exclusionary, the Commonwealth Court followed a line of its own decisions, beginning with Camp Hill Development Co. v. Zoning Board of Adjustment, Borough of Dauphin, 13 Pa. Commw. 519, 319 A.2d 197 (1974), which "set
standards by which zoning ordinances can be evaluated for exclusionary provisions". Kravitz Appeal, 53 Pa. Commw. at 625, 419 A.2d at 229 (1980). In Camp Hill, Ellick v. Board of Supervisors, Worcester Township, 17 Pa. Commw. 404, 333 A.2d 239 (1975), and others, the Commonwealth Court dealt with ordinances which explicitly prohibited the construction of townhouses. In Appeal of Robert P. Olson, 19 Pa. Commw. 514, 338 A.2d 748 (1975), the court dealt with an ordinance which did not prohibit townhouses, but did not provide for them either. Both circumstances were held to be controlled by this Court's decision in Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970). Treating townhouses as "an accepted form of development entitled . . . to the same recognition accorded by Girsh to apartments", Camp Hill, 13 Pa. Commw. at 525, 319 A.2d at 200, the Commonwealth Court developed the rule that an ordinance which prohibits or unreasonably fails to provide for townhouses is unconstitutional. In the present case, the court reviewed the Ordinance and determined that the only district which conceivably allows for more than single-family detached residential uses, "cannot be reasonably construed to incorporate the separate and distinctly provided for single-family attached townhouse use". 53 Pa. Commw. at 627, 419 A.2d at 230. Concluding that the Ordinance "fails to provide a home for [the] legitimate and necessary development [of townhouses]", 53 Pa. Commw. at 628, 419 A.2d at 230, the court declared the Ordinance unconstitutional and directed approval of the proposed development. We reverse.
Central to the Commonwealth Court's decision in Camp Hill and, consequently, in this case, is the assumption that townhouses, being a legitimate and accepted form of residential use, are entitled to the same protection afforded to apartments in Girsh. This assumption ignores significant facts which bore on our decision in Girsh and thus, while tracing the rule of that case, it outruns the reasoning which supports that rule.
In Girsh, the developer sought to build two nine-story buildings, each containing up to 280 luxury apartments, on a
.5 acre parcel of land in an area zoned for single-family dwelling units. Approximately 75% of the township's land area was zoned to permit only the construction of single-family dwellings. The remainder was zoned for commercial and industrial uses, with two apartments having been permitted by variance. Multi-unit apartments were neither expressly prohibited nor expressly provided for in the zoning ordinance.
Writing for the majority,*fn2 Mr. Justice Roberts (now Chief Justice) began by observing that "[t]o be constitutionally sustained, [the township's] land-use restriction must be reasonable". 437 Pa. at 241, 263 A.2d at 397. He then observed that " [a]t least for the purposes of this case, the failure to provide for apartments anywhere within the Township must be viewed as the legal equivalent of an explicit total prohibition of apartment houses in the zoning ordinance". Id. (Emphasis added). Former Chief Justice Bell concurred in the opinion of the Court on the ground "that the present zoning ordinance (1) in practical effect amounts to a prohibition of apartment houses . . ." 437 Pa. at 247, 263 A.2d at 400 (Emphasis in original).
We think it important to note that this basic element of the reasoning in Girsh was explicitly limited to facts peculiar to that case. We also observe that the ordinance challenged in Girsh made no provision for any form of residence other than single-family units. The developer sought to build multi-unit high rise apartments, but the zoning ordinance did not permit any form of multiple dwelling. Indeed, Girsh argued that he used the term "apartments" to include all forms of multiple dwellings. (Brief of Appellant Joseph Girsh, p. 11). The importance of these observations becomes apparent in light of the rationale which supported our holding.
That rationale was derived from two previous cases, National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965), and Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967). In Exton Quarries it was stated that:
The constitutionality of zoning ordinances which totally prohibit legitimate businesses . . . from an entire community should be regarded with particular circumspection; for unlike the constitutionality of most restrictions on property rights imposed by other ordinances, the constitutionality of total prohibitions of legitimate businesses cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community.
425 Pa. at 59, 228 A.2d at 179.
We did not decide Girsh by simply applying this reasoning from Exton Quarries to apartments (in the restrictive sense of multi-unit high rise buildings) as a "legitimate business". Nor could we have decided it in that way, because the ordinance in Girsh did not enact a total prohibition on apartments, it simply did not provide for them. We also looked to National Land where the broader question was presented, "whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas . . .", 419 Pa. at 532, 215 A.2d at 612, and answered, "[a] zoning ordinance whose primary purpose is to prevent the entrance of newcomers . . . cannot be held valid". Id. A fair reading of Girsh makes it clear that there, as in National Land, we were concerned with the exclusion of population growth. ["Appellee here has simply made a decision that it is content with things as they are, and that the expense or change in character that would result from people moving in to find 'a comfortable place to live' are for someone else to worry about. That decision is unacceptable". 437 Pa. at 244, 263 A.2d at 398. "Nether Providence Township may not permissibly choose to only take as many people as can live in single-family housing, in
effect freezing the population at near present levels. Obviously if every municipality took that view, population spread ...