KS Development Company, L.P. and KS Development Company 2, L.P. v. Lower Nazareth Twp.
149 A.3d 105
| Pa. Commw. Ct. | 2016Background
- KS Development and Woodmont sought curative amendments after Lower Nazareth Township denied their request to allow apartments in the Office Park (OP) District; the Board and trial court affirmed denial.
- KS Development argued the Zoning Ordinance either de jure (total) or de facto (practical) excludes apartments, or fails to provide the Township’s "fair share" of multifamily housing.
- The Ordinance expressly permits apartments in the Medium Density Residential (MDR) District and in the Mixed‑Use Overlay (upper floors only); it separately defines personal care centers, life care centers, and retirement villages (not as "apartments").
- KS Development produced evidence that MDR density, minimum tract, open‑space and set‑aside rules make apartment development economically infeasible on available sites.
- The Board and Trial Court applied the Surrick three‑part test, found the Township "in the path of growth" but highly developed, and concluded KS Development failed to show the Ordinance was de facto exclusionary; this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ordinance is de jure exclusionary of apartments | Ordinance effectively excludes apartments (total ban) requiring curative amendment | Apartments are permitted in MDR and Mixed‑Use Overlay; not a facial ban | Not de jure exclusionary — apartments are expressly permitted in MDR and Mixed‑Use Overlay |
| Whether the Ordinance is de facto exclusionary under Surrick (fair‑share analysis) | Township lacks sufficient land available for apartment development and is underdeveloped, so Ordinance denies fair share | Township is highly developed when active agricultural land is treated as developed; KS failed second prong of Surrick | KS failed to show Township was underdeveloped; Board and trial court properly declined to reach fair‑share prong |
| Whether ordinance restrictions render apartments economically infeasible (de facto exclusion by regulation) | Density, 5‑acre minimum, 15% tract cap, and open‑space requirements make apartment projects economically impossible | Restrictions regulate configuration/density for legitimate public purposes; limitations alone don’t prove exclusion; KS didn’t show restrictions are unreasonable or unrelated to public welfare | Evidence insufficient to prove the restrictions made apartment development infeasible or unreasonable; no de facto exclusion |
| Proper analytical framework: Surrick v. substantive due process/economic infeasibility test | KS: focus should be on whether permitted use is illusory because restrictions make it infeasible (substantive due process) | Board: Surrick three‑part test is appropriate for de facto exclusion claims; economic infeasibility is a subset of de facto analysis | Court: Surrick framework governs de facto exclusion/fair‑share claims; economic infeasibility claims considered but KS did not meet its burden |
Key Cases Cited
- Surrick v. Zoning Hearing Board of the Township of Upper Providence, 382 A.2d 105 (Pa. 1978) (three‑part test for evaluating de facto exclusion of housing)
- Appeal of Girsh, 263 A.2d 395 (Pa. 1970) (municipalities must accept a fair share of development burdens)
- National Land & Investment Co. v. Kohn, 215 A.2d 597 (Pa. 1965) (zoning is planning tool, not a means to deny future development)
- BAC, Inc. v. Board of Supervisors of Millcreek Township, 633 A.2d 144 (Pa. 1993) (factors for Surrick path‑of‑growth inquiry)
- Stahl v. Upper Southampton Township Zoning Hearing Board, 606 A.2d 960 (Pa. Cmwlth. 1992) (ordinance restrictions that render a permitted use economically infeasible can constitute de facto exclusion)
- H.R. Miller Co., Inc. v. Board of Supervisors, 605 A.2d 321 (Pa. 1992) (site‑specific curative amendment relief; ordinance can be illusory if restrictions physically/economically preclude use)