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decided: December 27, 1985.



Jeanne Ward Ryan, Daniel Mungall, Jr., Philadelphia, for appellants.

Lois Reznick, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. Nix, C.j., files a concurring opinion. McDermott, J., files a concurring and dissenting opinion with Zappala, J., joining in the dissenting portion only. Zappala, J., files a concurring and dissenting opinion with McDermott, J., joining in the dissenting portion only.

Author: Hutchinson

[ 509 Pa. Page 416]


Appellants, owners of 245 acres of undeveloped land in Schuylkill Township in Chester County, appeal a Commonwealth Court, 76 Pa. Commw. 409, 464 A.2d 587 order affirming the Court of Common Pleas of Chester County. The Court of Common Pleas, in turn, had affirmed the decision of the Board of Supervisors of Schuylkill Township denying appellants' application for a curative amendment*fn1 which challenged the total prohibition of multi-family dwellings contained in the Township's zoning ordinance*fn2 on exclusionary grounds and sought the establishment of a new residential district in which appellants could construct garden apartments, townhouses and quadraplexes. We now reverse Commonwealth Court and hold that Schuylkill Township's zoning ordinance is impermissibly exclusionary because it totally prohibits the construction of multi-family dwellings.

The zoning ordinance in effect at the time appellants filed for a curative amendment established five residential districts, the least restrictive of which was designated R4-Residential and permitted single family dwellings on lots having a minimum area of 15,000 square feet. Zoning Ordinance of 1955, as amended, § 676(1). Appellants' property was classified under the zoning ordinance as A-Agricultural. Section 302(1) of the ordinance provided for a minimum lot size of five acres in that district. Two-family detached dwellings were permitted but only on lots of ten acres or more. Id. at § 301(2). Moreover, dwellings existing

[ 509 Pa. Page 417]

    at the time the ordinance was adopted in 1955 could be converted to accommodate no more than three families. Id. at § 301(1). The zoning ordinance otherwise prohibited multi-family homes.*fn3

On this appeal, appellants challenge Commonwealth Court's conclusion that the zoning ordinance's absolute prohibition of multi-family housing is not unconstitutionally exclusionary because Schuylkill Township is not a logical area for growth and development, and, therefore, no one has been excluded.*fn4 In reaching its conclusion, Commonwealth Court employed the "fair share" analysis first announced in Surrick v. Zoning Hearing Board, 476 Pa. 182, 382 A.2d 105 (1977), which, until its decision, had been applied only in cases involving zoning regulations which partially, not totally, ban a particular type of housing stock. We are now confronted with the question of whether a fair share analysis must be employed to assess the exclusionary impact of zoning regulations which totally prohibit a basic type of housing. We hold that the fair share analysis is

[ 509 Pa. Page 418]

    inapplicable to this Schuylkill Township zoning ordinance which absolutely prohibits apartment buildings.

A zoning ordinance is presumed constitutional and anyone challenging it bears a heavy burden of proving its invalidity. Miller & Son Paving, Inc. v. Wrightstown Township, 499 Pa. 80, 89, 451 A.2d 1002, 1006 (1982); Schubach v. Silver, 461 Pa. 366, 380, 336 A.2d 328, 335 (1975). Where the challenger proves a total prohibition of a legitimate use, the burden shifts to the municipality to establish that the prohibition promotes public health, safety, morals and general welfare. Beaver Gasoline Co. v. Zoning Hearing Board, 445 Pa. 571, 576, 285 A.2d 501, 503 (1971); Ellick v. Board of Supervisors, 17 Pa. Commonwealth 404, 410, 333 A.2d 239, 243-44 (1975). Moreover, the constitutionality of a zoning ordinance which totally excludes a legitimate use is regarded with circumspection and, therefore, such ordinance must bear a more substantial relationship to a stated public purpose than a regulation which merely confines that use to a certain area within the municipality. Re: Appeal of Elocin, Inc., 501 Pa. 348, 351-52, 461 A.2d 771, 772-73 (1983); Appeal of Girsh, 437 Pa. 237, 242-43, 263 A.2d 395, 397-98 (1970). See Beaver Gasoline Co. v. Zoning Hearing Board, 445 Pa. at 574, 285 A.2d at 503 (total ban on gasoline service stations); Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 59, 228 A.2d 169, 179 (1967) (total ban on quarries).

The "fair share" test,*fn5 enunciated in Surrick, supra, was judicially developed as a means of analyzing zoning ordinances which effect a partial ban that amounts to a de facto exclusion of a particular use, as distinguished from those ordinances which provide for a total or de jure exclusion. The de facto exclusionary doctrine "was intended to foster regional growth by requiring communities

[ 509 Pa. Page 419]

    located on the fringes of the metropolitan areas to absorb the 'increased responsibility' and 'economic burdens' which time and natural growth invariably bring." Hammermill Paper Co. v. Greene Township, 39 Pa. Commonwealth 212, 219, 395 A.2d 618, 621 (1978) (citing National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 [1965]). See Surrick, 476 Pa. at 189, 382 A.2d at 108; Willistown v. Chesterdale Farms, Inc., 462 Pa. 445, 448-49, 341 A.2d 466, 468 (1975). Cases involving de facto or partially exclusionary zoning turn on the question of whether the provision for a particular use in the ordinance at issue reasonably accommodates the immediate and projected demand for that use. In these cases certain factors influencing population growth become relevant to the question of whether a zoning ordinance which already allows a particular and basic type of housing stock in designated areas is nevertheless impermissibly exclusionary because the amount of housing of that type permitted under the ordinance is unfairly limited when compared to the immediate and projected demand for it. See Surrick, 476 Pa. at 194, 382 A.2d at 111.

Considerations underpinning the fair share principle are irrelevant when the challenged zoning regulation totally excludes a basic form of housing such as apartments. It is true that demand for apartments often derives from the pressure of regional population growth. See, e.g., Appeal of Girsh, 437 Pa. at 244, 263 A.2d at 398 (township could not be permitted to "choose to only take as many people as can live in single-family housing, in effect freezing population at near present levels"). Similarly, permitting any type of new construction within a municipality will, ordinarily, result in an increase in that community's population.

However, demand for housing is not necessarily correlated to population growth. Regardless of projected growth patterns, there may be many families who presently desire to make their home in Schuylkill Township but who are effectively zoned out of the community because they cannot afford to purchase either a single-family house or a duplex.

[ 509 Pa. Page 420]

Accordingly, Schuylkill Township's contention that its zoning ordinance does not exclude anyone because population projections show little or no growth in the community is untenable.*fn6 Because the Township has failed to establish that the total exclusion of apartments serves a legitimate public purpose, the zoning ordinance is unconstitutional insofar as it fails to provide for apartments or for other types of multi-family housing.

We must next determine the judicial relief to which appellants are entitled. Appellants contend that they are entitled to definitive relief, i.e., automatic and total approval of their development plan. Conversely, the appellee argues that appellants' remedy is limited to the additional development rights provided them under the amendment passed by the Township in 1975 for the purpose of curing any constitutional infirmity created by the total ban on multi-family housing contained in the zoning ordinance as originally enacted.*fn7

In Casey v. Zoning Hearing Board, 459 Pa. 219, 228, 328 A.2d 464, 468 (1974), we observed that "an applicant, successful in having a zoning ordinance declared unconstitutional, should not be frustrated in his quest for relief by a retributory township." Accordingly, we held that a zoning provision adopted by a municipality which cures the constitutional infirmity but which was not considered or advertised prior to the filing of the challenger's application for review of the zoning ordinance, may not be given effect for purposes of fashioning the appropriate relief to be awarded

[ 509 Pa. Page 421]

    to the successful challenger. Id., 459 Pa. at 229, 328 A.2d at 469.

In reaching this determination, we reasoned that to hold otherwise:

     would effectively grant the municipality a power to prevent any challenger from obtaining meaningful relief after a successful attack on a zoning ordinance. The municipality could penalize the successful challenger by enacting an amendatory ordinance designed to cure the constitutional infirmity, but also designed to zone around the challenger. Faced with such an obstacle to relief, few would undertake the time and expense necessary to have a zoning ordinance declared unconstitutional.

Id., 459 Pa. at 228, 328 A.2d at 468.*fn8 Accordingly, Casey governs the instant litigation and ...

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