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H & R BUILDERS v. BOROUGH COUNCIL BOROUGH NORWOOD (03/09/89)

decided: March 9, 1989.

H & R BUILDERS, INC., APPELLANT
v.
THE BOROUGH COUNCIL OF THE BOROUGH OF NORWOOD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County, in the case of H & R Builders, Inc. v. The Borough Council of the Borough of Norwood, No. 86-9930.

COUNSEL

John P. Trevaskis, Jr., with him, Richard C. Slama, Jr., for appellant.

Barry C. Dozor, with him, Marnie L. Burk, for appellee.

Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 124 Pa. Commw. Page 89]

This court must now revisit the question of whether a zoning ordinance which totally prohibits townhouses, while allowing other classes of multi-family dwellings, is invalid as de jure exclusionary in the absence of a specific police power justification being established by the municipality, without the necessity of applying the "fair share" test laid down for de facto exclusions in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977).

Alternatively, this court must consider whether a municipality's total prohibition of junkyards or "auto

[ 124 Pa. Commw. Page 90]

    graveyards" is invalid as an exclusion of a "legitimate business" under Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967).

Finally, if the conclusion is that an invalid exclusion does exist in this case, the court will have to consider the question of whether the landowner is entitled to site-specific relief in accordance with Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 328 A.2d 464 (1974).

History and Facts

H & R Builders, Inc., landowner of 2.2 vacant acres in a Residence District established by the Zoning Ordinance of Norwood Borough, filed a curative amendment proceeding under sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยงยง 10609.1, 11004, with the Borough Council of Norwood Borough, based upon a proposal, in the alternative, to construct either twenty-three townhouse units or a junkyard on the property, contending that the borough zoning ordinance is exclusionary because its section 801 expressly declares that, in the borough, "no permit shall be issued or permission given for the construction" of "solid row houses," and because its section 90-17(B) of the ordinance also expressly prohibits "auto graveyards."

There is no dispute that the concept of "row house" is synonymous with townhouse, i.e., three or more dwelling units attached side by side. Nor do the parties dispute that an auto graveyard and a junkyard are synonymous.

After conducting hearings, the borough council held the ordinance to be valid, and adopted verbatim the objectors' requested findings as its own findings and also adopted verbatim the objectors' brief as embodying the analysis and conclusions with which the council agreed.

[ 124 Pa. Commw. Page 91]

Accordingly, the borough council denied the landowner's curative amendment request and affirmed the validity of the zoning ordinance. The Court of Common Pleas of Delaware County, to which the landowner appealed, affirmed the decision of the borough council.

1. Validity of Blanket Prohibition of Townhouses

With respect to the questions of law in this case, the Pennsylvania Supreme Court's most recent and most authoritative decision and opinion is in Fernley v. Board of Supervisors of Schuylkill Township, 509 Pa. 413, 502 A.2d 585 (1985). That case involved a township zoning ordinance which absolutely prohibited all multi-family dwellings. The opinion of Mr. Justice Hutchinson, for a majority of the court, posed the question and stated the answer 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 Schuylkill Township zoning ordinance which absolutely prohibits apartment buildings.

509 Pa. at 417-18, 502 A.2d at 587. The opinion proceeds to explain that "the fair share" test of Surrick relates to "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." 509 Pa. at 418, 502 A.2d at 587-88. Such de facto or partially exclusionary issues 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," 509 Pa. at 419, 502 A.2d at 588; hence,

[ 124 Pa. Commw. Page 92]

    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 . . . .

509 Pa. at 419, 502 A.2d at 588. The Fernley opinion then proceeds to point out that the fair share principle is irrelevant "when the challenged zoning regulation totally excludes a basic form of housing such as apartments." The Supreme Court reasoned that demand for housing is not necessarily related to population growth, adding that there may be many families who presently desire to live in a particular municipality "but who are effectively zoned out of the community because they cannot afford to purchase either a single-family house or a duplex." Mr. Justice Hutchinson concluded:

Accordingly, Schuylkill Township's contention that its zoning ordinance does not exclude anyone because population projections show little or no ...


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