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ROBERT C. FERNLEY v. BOARD SUPERVISORS SCHUYLKILL TOWNSHIP (08/16/83)

decided: August 16, 1983.

ROBERT C. FERNLEY, LOIS M. MCNEIL AND JOAN M. MCCRACKEN, APPELLANTS
v.
THE BOARD OF SUPERVISORS OF SCHUYLKILL TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in case of Robert C. Fernley, Lois M. McNeil and Joan M. McCracken v. The Board of Supervisors of Schuylkill Township, No. 17 April 1978.

COUNSEL

Daniel Mungall, Jr., with him Jeanne Ward Ryan, Stradley, Ronon, Stevens & Young, for appellants.

Lois Reznick, Dechert, Price & Rhoads, for appellee.

President Judge Crumlish, Jr. and Judges Blatt, Craig and MacPhail. Opinion by Judge Craig. President Judge Crumlish, Jr. concurs in the result only.

Author: Craig

[ 76 Pa. Commw. Page 410]

Developers present this exclusionary zoning appeal from a decision of the Court of Common Pleas of Chester County which affirmed the Schuylkill Township Board of Supervisors' rejection of the developers' curative amendment attack upon the zoning ordinance's prohibition of multiple dwellings. The developers propose to erect 1556 residential units of multi-family dwellings (garden apartments, townhouses and fourplexes) on 245 acres, at densities ranging from 6.4 per acre to 14 units per acre.

This case presents a question of exclusionary zoning law which we have not previously encountered. The issue is:

Where a municipality factually is not a logical area for growth and development, may its zoning ordinance totally prohibit apartments without being legally invalid as exclusionary?

In seeking to apply the exclusionary zoning doctrines enunciated by the Pennsylvania Supreme Court, we must resolve whether or not we are required to pursue the fair share analysis laid down by the majority opinion (three of five justices) in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977), where, as here, the prohibition

[ 76 Pa. Commw. Page 411]

    is total, and not just where the prohibition is partial.

The Schuylkill Township Zoning Ordinance, as the developers found it on April 16, 1975 when they filed their application, specifically provided:

Section 1401. Attached, Semi-detached and Multiple Dwellings. No attached or semi-detached building shall be used in whole or in part as a dwelling and no multiple dwelling shall be constructed in any district of the township other than two-family ...


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