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APPEAL ARTHUR SHORE FROM DECISION BOARD SUPERVISORS SOLEBURY TOWNSHIP DENYING REQUEST FOR CURATIVE AMENDMENT. ARTHUR SHORE (07/22/87)

decided: July 22, 1987.

IN RE: APPEAL OF ARTHUR SHORE FROM THE DECISION OF THE BOARD OF SUPERVISORS OF SOLEBURY TOWNSHIP DENYING REQUEST FOR CURATIVE AMENDMENT. ARTHUR SHORE, APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Arthur Shore from the decision of the Board of Supervisors of Solebury Township denying request for Curative Amendment, No. 81-08960-14-5.

COUNSEL

Richard P. McBride, with him, Caroline F. Achey and Edward F. Murphy, McBride and Murphy, for appellant.

Stephen B. Harris, with him, Linda K. Caracappa, Harris and Harris, P.C., for appellee, Solebury Township.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 107 Pa. Commw. Page 524]

This exclusionary zoning case is before this court on remand from the Supreme Court for reconsideration in light of Fernley v. Board of Supervisors of Schuylkill Township, 509 Pa. 413, 502 A.2d 585 (1985).

When this court previously addressed this zoning appeal, we affirmed the trial court's affirmance of the Board of Supervisors of Solebury Township's rejection of landowner Arthur Shore's constitutional attack on its zoning ordinance which, undisputedly, totally excludes mobilehome parks. In re: Appeal of Arthur Shore, 91 Pa. Commonwealth Ct. 7, 496 A.2d 876 (1985). That affirmance was premised on the Supreme Court's holding in Appeal of M.A. Kravitz Co., Inc. v. Board of Supervisors of Wrightston Township, 501 Pa. 200, 460 A.2d 1075 (1983), which applied the validity analysis*fn1 described in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977), to a review of an ordinance which totally excluded a legitimate type of housing, contrary to earlier decisions which applied that validity analysis only to less-than-total housing exclusions.

[ 107 Pa. Commw. Page 525]

Because this court rendered a decision on this case before the Supreme Court held, in Fernley, that a validity analysis is inapplicable when reviewing a zoning ordinance which totally prohibits a basic type of housing, we must now reconsider the issue here, as stated in our earlier decision: "Whether a total exclusion of mobilehome parks, a legitimate residential use category, is unconstitutional. . . ." In re: Arthur Shore, 91 Pa. Commonwealth Ct. at 8, 496 A.2d at 876.

In Fernley, the Supreme Court stated the issue before it as follows:

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 inapplicable to this [municipality] zoning ordinance which absolutely prohibits apartment buildings.

509 Pa. at 417-18, 502 A.2d at 587.

The board of supervisors contends that the Supreme Court's holding in Fernley is not applicable because the zoning ordinance under attack here permits a wide variety of multi-family housing, whereas the zoning ordinance under attack in Fernley did not provide for any multi-family housing. Hence, the board asserts that, because the zoning ordinance here does not exclude from the township persons who cannot ...


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