No. 60 E.D. Appeal Dkt. 1982, No. 68 E.D. Appeal Dkt. 1982, No. 69 E.D. Appeal Dkt. 1982, On Appeal from the Order of the Commonwealth Court of Pennsylvania, No. 2128 C.D. 1980, Which Reversed the Decision of the Court of Common Pleas of Delaware County, No. 78-16748, and Remanded to that Court
Lloyd R. Ziff, Philadelphia, for Margaret Ziff, et al.
Harry J. Bradley, Media, Jan Z. Krasnowiecki, Philadelphia, for Springfield Tp.
James D. Crawford, Richard D. Birns, Philadelphia, for Elocin, et al.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Flaherty, J., concurred in the result. Nix, J., filed a dissenting and concurring opinion. Hutchinson, J., filed a dissenting and concurring opinion. Larsen, J., dissents and would affirm based upon the opinion of the Commonwealth Court, In re: Appeal of Elocin, Inc.,
Petitioner, Elocin, Inc. (hereafter "Elocin"), applied to the Board of Commissioners of Springfield Township (hereafter "Springfield"), Delaware County, for a curative amendment to the township zoning ordinance. The purpose of the amendment was to allow Elocin to proceed with a development proposal on a certain tract of land it owns (hereafter "Elocin tract"). The Board of Commissioners denied the curative amendment. Elocin appealed to the Court of Common Pleas of Delaware County, which upheld the decision of the Board of Commissioners. The Commonwealth Court reversed, 66 Pa. Commw. 28, 443 A.2d 1333, holding that the zoning ordinance was invalid, and remanded the case to the Court of Common Pleas for consideration of the reasonableness of Elocin's development proposal. We granted cross petitions for allowance of appeal by Springfield and Elocin. Springfield seeks to reinstate the order of the Court of Common Pleas. Elocin seeks definitive relief without the necessity for a remand.
The Elocin tract has an area of sixty-four (64) acres. Elocin proposes to construct 567 mid or high-rise apartment units and 305 townhouse units. That is contrary to the zoning ordinance, which places the Elocin tract in an "A residence" district, where the only type of residence permitted is a single-family detached home. The ordinance provides for other types of districts in which semi-detached homes, two-family homes and apartment houses are permitted. Apartment houses may contain no more than four units. They may have no more than two stories, and their height may not exceed thirty-five feet. The ordinance makes no provision for townhouses or mid or high-rise apartments.
Evidence introduced at hearings before the Board of Commissioners established the following facts: Approximately twelve percent of the housing in Springfield is in multi-family dwellings in the form of twin homes or apartments. Springfield contains approximately 160 acres of undeveloped land, which is approximately four percent of the total land area. Of the land in the Elocin tract, 18.8% is within a 100-year flood plain, 31% consists of slopes with grades in excess of 15%, 8.4% is in an area of high water table, and 62% is under heavy tree cover.
The issue is whether the ordinance is unconstitutionally exclusionary. An ordinance will be so held if it does not make reasonable allowance for legitimate uses. On that basis, we struck down a zoning ordinance that imposed a four-acre minimum lot size on certain residential districts. National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965). While we did not hold the minimum lot size unconstitutional per se, we held that the municipality had not advanced any argument that sustained the constitutionality of the ordinance as applied to the property in question under the circumstances. We further held that a municipality could not use zoning to avoid the responsibilities and economic burdens of population growth. Similarly, in Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970), we held two and three-acre minimum lot sizes unconstitutional in the absence of extraordinary circumstances.
In a number of cases, we have struck down zoning ordinances that completely banned particular uses from the municipality. We struck down bans on off-size sign advertising, Norate Corp. v. Zoning Board of Adjustment, 417 Pa. 397, 207 A.2d 890 (1965), and flashing and intermittent lights, Ammon R. Smith Auto Co. Appeal, 423 Pa. 493, 223 A.2d 683 (1966). We clarified the law in that area in Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967), where we struck down a ban ...