Appeal from the Order of the Court of Common Pleas of Chester County in the case of William P. Cracas et al. v. Board of Supervisors of West Pikeland Township, No. 198 October Term, 1981.
John D. Snyder, with him, E. Craig Kalemjian, Lamb, Windle & McErlane, P.C., for appellants.
Sondra K. Slade, Pitt, Agulnick, Supplee, Johnson & Slade, for appellee.
Judges Craig and Colins and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 89 Pa. Commw. Page 425]
In this zoning case, a group of landowners*fn1 challenged the West Pikeland Township zoning ordinance as exclusionary, alleging that it failed to provide for a variety of commercial uses. The township's board of supervisors rejected the landowners' challenge and proposed curative amendment, concluding that the existing zoning ordinance permitted the commercial uses in question. On appeal, the court of common pleas affirmed on the same grounds, without taking additional evidence. Consistent with our scope of review,*fn2 we
[ 89 Pa. Commw. Page 426]
must determine whether the board of supervisors erred in concluding that the zoning ordinance was not exclusionary with respect to the proposed commercial uses.
The property of each of the landowners is located in the Conservation-Residence District, which permits single-family dwellings, agriculture and conservation uses. The landowners currently conduct a variety of businesses from their residences, including general contracting, landscaping, paving, retail and wholesale sale of eggs, and janitorial and carpet cleaning services. Several of the landowners also store business equipment and materials on their property.
The landowners' proposed curative amendment would have created a commercial district permitting all of a specified list of business activities, subject to various conditions, including a requirement that someone in control of the business reside on the respective premises.
On appeal, the township supervisors assert that because the curative amendment's proposed commercial-residential combination use is not a generally accepted land use for the purpose of zoning, failure to provide for that use cannot render the ordinance exclusionary. In response, the landowners point out that once the board of supervisors had rejected their proposed curative amendment, that amendment was no longer viable as such on appeal, citing Appeal of Olson, 19 Pa. Commonwealth Ct. 514, 338 A.2d 748 (1975) and Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975).
Although we agree with the board's position that failure to provide for a combined commercial-residential category, which judicial authority has never recognized, does not render an ordinance exclusionary, See Csink v. Ulrich, 51 Pa. Commonwealth Ct. 149, 414 A.2d 405 (1980) (mid-rise apartment
[ 89 Pa. Commw. Page 427]
buildings not a category for which zoning must provide), the cases cited by the landowners have established that on appeal the substantive merits of a proposed curative amendment are no longer a relevant issue.
In their challenge to the township and their notice of appeal to the trial court, the landowners complained that the zoning ordinance was invalid and exclusionary because it failed to provide for specified commercial uses. By way of relief, the landowners requested approval of the uses they had listed in section 551 of the proposed curative amendment; section 551 details the specific commercial uses the landowners wish to make of their property and does not mention any form of residential use. It provides:
In a "C" Commercial district the following uses shall be permitted: Landscaping; Sale and refinishing of antiques; Green Houses; Masonry, Carpentry; Remodeling; Plumbing; Electrical (including motor and electronic repair); House Cleaning and Painting businesses; Wholesale establishments for the sale and distribution of supplies and general merchandise. These uses shall include the customary ...