The opinion of the court was delivered by: Judge Smith-ribner
Argued: November 11, 2008
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Edward T. Keinath and Deborah P. Keinath (Owners) appeal from the order of the Court of Common Pleas of Delaware County affirming the decision of the Township of Edgmont (Township) to deny Owners' application for a curative amendment. Owners challenge the validity of Article 4 of the Township's Zoning Ordinance 141 (Ordinance), claiming that its density restrictions are arbitrary and capricious and not rationally related to the stated purpose of the Ordinance. Owners also argue that the Ordinance is de facto exclusionary.
The Township covers approximately 9.74 square miles and is situated about twenty miles from Philadelphia. Almost fifty percent of the Township is residential, five percent commercial and five percent industrial. The remaining forty percent is comprised of Ridley Creek State Park, which separates the eastern and western portions of the Township. Owners' property consists of 24.7 acres (Property) and is located within the R-1 Rural Residential/Agricultural zoning district (R-1 District) set forth in Article 4 of the Ordinance. Because the Property does not qualify for any of the permitted principal uses in the R-1 District, Owners applied for a conditional use under Section 404 (Open Space Development).
Section 404 requires a tract area of no less than ten acres, of which at least fifty percent must be set aside for open space. No more than fifty percent of that designated open space can be wetlands, flood plain, water courses, very steep slopes or other natural and environmental resources; however, up to twenty percent of the open space can be used for common elements such as sanitary sewer or storm water management, upon showing that these cannot be located elsewhere. The other fifty percent may be developed with a density not exceeding one unit for every 87,120 square feet, based on the gross tract size. Owners' plan was rejected because it proposed construction of seventeen homes but zoning would allow for only twelve. On May 3, 2005, Owners applied for a curative amendment pursuant to Sections 609.1*fn1 and 916.1*fn2 of the Pennsylvania Municipalities Planning Code (MPC), seeking to have zoning for the Property changed to a one-acre density. Owners claim that Article 4 unconstitutionally excludes residential development at a density of less than one unit for every two acres and does not allow for growth.
After three public hearings, the Board of Supervisors issued a decision denying the curative amendment. The Board stated the intent of the R-1 District:
[T]o create: opportunities for the conservation of important farmlands and natural and environmental resources and features; opportunities to achieve a system of open space in accordance with the purposes set forth in Article 20, Section 2000; and, opportunities for new residential development consistent with the rural character of the Township, west of Ridley Creek State Park, wherein on-lot or community sewage disposal systems are utilized to conserve groundwater resources.
Board Finding of Fact No. 30. The Board recognized that goals of the Township's Comprehensive Plan include promoting a balance between land development and conservation of natural resources and promoting lower density in the western part of the Township to balance the high density east of the state park. The Plan also seeks to provide open space for recreation and to encourage creative development to preserve natural features and agricultural areas with growth management objectives, such as downsizing lot areas and pavements, minimizing consumptive aspects of new development and promoting agricultural land preservation. The R-1 District requires set-aside of open space in the Open Space Development Option and allows conventional development on tracts in excess of ten acres only if it will result in greater preservation of natural and environmental and cultural features than the Open Space Option. Also, the R-1 District encourages the efficient use of land, consistent with goals of the Comprehensive Plan and the Ordinance. It also answers the mandate of Section 604(1) of the MPC, 53 P.S. §10604(1), that zoning ordinances be designed to promote and facilitate proper community development and density of population while also preserving natural resources.
The Township's population increased by 93.97% from 1980 to 1990 with a housing increase of 172.62%; but for the period 1990 to 2000 the population increased by 43.25% and housing increased by only 19.76%. The Board made the following findings concerning the evidence of population growth:
81. The Applicants did not examine or analyze population growth as it relates to households or the demands for housing during the period of 1980 to 2000.
82. The Applicants did not examine or analyze population growth as it relates to demands for new housing in the future.
83. The calculation of residential land available for development provided by the Applicants were inaccurate and included properties which were unavailable due to being subject to agricultural development restrictions.
84. To say that 2-acre zoning impedes growth, implies that there are no other opportunities within the Township to ...