No. 42 MIDDLE DISTRICT APPEAL DOCKET, 1984, Appeal from Order of Commonwealth Court dated March 9, 1984, in 1281 C.D. 1983, affirming Order of Court of Common Pleas of York County dated April 18, 1983, in 81 S 2063. 81 Pa. Commonwealth Ct. 7,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., joins the majority opinion and files a concurring opinion. Papadakos, J., joins the majority opinion and also joins Flaherty's, J., concurring opinion. Larsen, McDermott and Zappala, JJ., concur in the result.
This is an appeal from a Commonwealth Court order which affirmed an order entered by the Court of Common Pleas of York County. The Court of Common Pleas had affirmed a decision of the Shrewsbury Township Zoning Hearing Board denying appellant's request for a variance and rejecting its challenge to certain provisions of the Township's zoning ordinance designed to preserve agricultural land. On this appeal appellant argues that the provisions in question are unconstitutional under the standards set forth in our opinion in Hopewell Township Bd. of Supervisors v. Golla, 499 Pa. 246, 452 A.2d 1337 (1982) (plurality opinion), and, additionally, that this Court should order approval of its subdivision plan. We hold that the challenged agricultural preservation provisions of Shrewsbury Township's zoning ordinance are constitutional both facially and as applied to appellant's property and, therefore, affirm Commonwealth Court.
Appellant, Boundary Drive Associates, owns thirty-nine acres of undeveloped prime farmland in Shrewsbury Township, York County, Pennsylvania. The tract originally comprised approximately forty-three acres when appellant purchased
it in 1975.*fn1 At that time Shrewsbury had not enacted a zoning ordinance. However, a land development ordinance then in effect would have permitted appellant to subdivide the tract into half-acre residential lots provided that the new development was connected to New Freedom Borough's public sewer lines.*fn2
Appellant submitted a proposal to the Township to develop the tract into seventy-two lots. This proposal contemplated public sewer service and on-site water. Zoning Hearing Board Findings of Fact ("F.F.") 14. It was effectively approved in July, 1976 when the Township failed to act on the plan.*fn3 In November, 1976 the Township enacted its first zoning ordinance. Under it appellant's land was classified as agricultural. In September, 1978, the Township formally approved the subdivision proposal, at appellant's request. However, it attempted to qualify approval by stipulating that the Township would not assist appellant in securing connection to New Freedom Borough's public sewer system. Appellant was unsuccessful in its negotiations for sewer service with New Freedom Borough. Thereafter, Common Pleas found appellant abandoned efforts to implement this subdivision plan.
In 1979 the Township's Zoning Hearing Board approved appellant's proposal, consistent with the zoning ordinance, to sell three one-acre lots from its forty-three acre tract.*fn4 Those lots were sold. In October, 1981 appellant submitted a second subdivision plan to the Board, proposing to develop
its remaining thirty-nine acres into sixty-seven lots having on-site sewer and water systems. The Board determined that the second proposal was inconsistent with Sections 5.03(1)(1), 5.04(1) and 5.04(4) of Shrewsbury's zoning ordinance and refused to grant a validity variance from those provisions. Appellant appealed to the Court of Common Pleas of York County charging that the Board abused its discretion in denying the requested validity variance and, in the alternative, that the provisions of Shrewsbury's zoning ordinance are exclusionary and confiscatory and therefore unconstitutional. Common Pleas affirmed the Zoning Hearing Board's substantive determinations.*fn5 Commonwealth Court likewise held the challenged provisions constitutional, concluding that they "bear a rational relationship to the stated goal of agricultural preservation and do not effect irrational or discriminatory results."*fn6 Boundary Drive Associates v. Shrewsbury Township Board, 81 Pa. Commonwealth Ct. 7, 15, 473 A.2d 706, 710 (1984).
Shrewsbury Township covers 28.6 square miles, seventy-eight percent of which is high quality farmland. F.F. 31, 32. Shrewsbury's leading industry is agriculture and, in fact, of all the communities in York County, the Township has one of the highest percentages of prime farmland. F.F. 34, 35.
The agricultural preservation provisions of Shrewsbury's zoning ordinance are designed to effectuate the Township's policies regarding farmland. These policies are set out in the Township's Comprehensive Plan:
In planning for agricultural land, it is the Township's policy not to consider agricultural land as "undeveloped farmland awaiting another use." Farmland must be considered as "developed land". It is being used to produce a product. Farming is a land-intensive manufacturing process which converts raw materials into a product, comparable to other industrial operations, with occasional accompanying nuisances of noise, odor and dust. The agricultural zone should not be considered as a holding zone, but as a zone having a positive purpose of utilizing the Township's natural resources for the benefit of the entire community and the Township should protect the agricultural zone from interference by incompatible uses which break down the integrity of the zone and also interfere with normal and customary operations within the zone.
Comprehensive Plan at 16. See also Shrewsbury Township Zoning Ordinance § 5.01.
Specifically, the provisions of the zoning ordinance at issue here designate agricultural districts within the Township and regulate their use. Agricultural districts are further divided into three classifications based on soil capability.
The first category encompasses Class I, Class II, Class IIIe-1 and Class IIIe-2 soils. These soils represent the best farmland in the Township. Pursuant to the zoning ordinance, no non-agricultural use is permitted on such land except that, when necessary, a total of two dwellings may be located on a tract consisting entirely of this highest quality farmland.
The second category consists of soils in Classes IIIe-3 through IVe-4. These too are highly suitable for agricultural use but slightly less productive than soils in the first three classes. Under the applicable zoning provisions, an owner may place on this less productive land the non-farm dwelling units allotted to him by an area-based density schedule. According to this schedule, the number of permissible dwellings increases with the size of the area
owned, but not in direct linear proportion to ...