Fernley v. Bd. of Sup'rs of Schuylkill Tp.

A.2d 585 FERNLEY, Lois M. McNeil and Joan M. Robert C.

McCracken, Appellants, OF OF SUPERVISORS SCHUYLKILL BOARD TOWNSHIP, Appellee. Pennsylvania.

Supreme Court of Argued 1984. Oct. Dec.

Decided 31,1986. Reargument July Denied Jr., Ryan, Mungall, Philadelphia, Jeanne Ward Daniel appellants. Reznick, Philadelphia, appellee.

Lois C.J., LARSEN, FLAHERTY, NIX, and McDER- Before HUTCHINSON, PAPADAKOS, MOTT, ZAPPALA, JJ. OF THE COURT

OPINION HUTCHINSON, Justice. land in

Appellants, undeveloped 245 acres owners County, appeal a Common- Schuylkill Township Chester Court, 409, 464 A.2d 587 order af- 76 Pa.Cmwlth. wealth County. Pleas of firming the of Common Chester Court turn, Pleas, in had affirmed the The Court of Common Supervisors of Schuylkill Township of the Board of decision appellants’ application for curative amendment1 denying prohibition of multi-family the total dwell- challenged Township’s contained in the ordinance2 ings of a sought the establishment exclusionary grounds in which construct appellants residential district could new We apartments, quadraplexes. townhouses and garden hold Schuylkill now reverse Cоmmonwealth Court exclusionary ordinance is Township’s zoning impermissibly multi-family the construction of totally prohibits because dwellings. appellants in effect at time zoning ordinance residential for a amendment established five

filed curative R4 districts, designated restrictive of which was the least on lots single family dwellings permitted Residential and 15,000 Zoning square area of feet. having a minimum 676(1). amended, prop Appellants’ Ordinance A-Agri as zoning under the ordinance was classified erty 302(1) provided of the ordinance Section cultural. Two-family in that district. size of five acres minimum lot of ten only on lots dwellings permitted were but detached Moreover, 301(2). dwellings exist- at acres more. Id. § application was filed appellants’ for a curative amendment The 1. Planning Pennsylvania Municipalities of the pursuant Section 609.1 1, 333, 93, 609.1, 1972, P.S. (M.P.C.), No. of June P.L. Code Act 10609.1. 2. County, Pennsylvania Zoning Township, Ordi- Schuylkill Chester as amended. nance in 1955 could be adopted the ordinance was at the time ing Id. three families. no more than to accommodate converted prohibited otherwise 301(1). zoning at § multi-family homes.3 challenge Commonwealth appeal, appellants

On pro absolute zoning ordinance’s conclusion Court’s unconstitutionally is not multi-family housing hibition logical Township is not a Schuylkill exclusionary because and, therefore, no one development, growth area conclusion, reaching its Common excluded.4 has been an analysis share” first the “fair employed Court wealth Board, Hearing Zoning Surrick in nounced decision, which, had been until its A.2d 105 involving zoning regulations in cases applied only housing stock. particular type ban a totally, not partially, fair of whether a question are now confronted with We exclusionary to assess the employed must be analysis share totally prohibit basic regulations which impact analysis fair share hold that housing. We type Attached, Dwellings. Multiple 1401. Semi-detached See Section 3. building used in whole or shall be semi-detached No attached or dwelling multiple shall be constructed dwelling part as a and no dwellings two-family as Township any other than of the district 301, 401, hereof. and 601 permitted in Sections Township’s litigation, of this Since the commencement permits residential That amendment ordinance has been amended. average by appellants. The development the land owned cluster on 40,000 square feet than shall be not less size in such a lot townhouses, semi-detached, quadraplex (.918 acres). Apartmеnts, township appellants’ albeit not on dwellings permitted in the are now amended, Township Zoning Schuylkill Ordinance land. 1, 1975. October ultimately proposed amendment that the The record establishes October, township published adopted had not been Thus, pend- appellants curative amendment. filed their the time Hearing Zoning Board Casey v. ing-ordinance doctrine enunciated (1974), prevents our A.2d 464 Township, Warwick of consideration challenged upon impact of that amendment ordinance. Schuyl- findings is that Supervisors’ key of fact One of the Board of development. path in the of urban-suburban is not kill (“F.F.”) 215. This Findings Nos. Supervisors’ of Fact Pleas. appeal by Court of Common finding was affirmed 418

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

A zoning ordinance is presumed сonstitutional and anyone challenging it bears a heavy burden of proving its invalidi- ty. Miller & Son Paving, Inc. v. Wrightstown Township, 80, 89, 1002, 499 Pa. (1982); 451 A.2d Schubach v. 1006 Silver, 366, 380, 461 Pa. 328, 336 A.2d (1975). 335 Where the challenger proves a prohibition total legitimate use, the burden shifts to the establish that the prohibition promotes public health, safety, morals and gen- eral welfare. Beaver Gasoline Co. v. Zoning Hearing Board, 571, 576, 445 Pa. 501, (1971); A.2d Ellick v. Supervisors, Board 404, 17 Pa. 410, Commonwealth 239, (1975). 243-44 Moreover, the constitutionality of a zoning ordinance which totally excludes legitimate use is regarded and, with circumspection therefore, such ordi- nance 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. Appeal Re: Elocin, Inc., 348, 351-52, 501 Pa. 771, 461 A.2d 772-73 Girsh, (1983); Appeal 437 Pa. 242-43, 263 A.2d See Beaver Gasoline Co. v. Zoning Hear- 397-98 Board, ing (total Pa. at 285 A.2d at 503 ban on Quarries, gasoline stations); service Exton Inc. v. Zoning Adjustment, 228 A.2d (1967) (total quarries). ban on test,5 “fair share” in Surrick, su enunciated pra, was judicially developed as a means of analyzing zoning ordinances which partial effect a ban that amounts to a de use, exclusion of a particular distinguished facto from those ordinances which provide for a total or jure de exclusion. The exclusionary doctrine “was intend defacto ed to foster regional growth by requiring communities analysis 5. The requires "fair share” reviewing court to determine whether "the zoning hearing formulas fashioned [local governing boards and weighted reflect a balanced bodies] consid- many eration of the upon factors which regional bear local and housing devеlopment.” Board, needs and Zoning Hearing Surrick v. 476 Pa. at 382 A.2d at 109-10. of the areas to absorb fringes metropolitan on the located which responsibility’ and ‘economic burdens’ ‘increased Hammermill growth invariably bring.” natural time Township, 212, Co. Greene Paper 39 Pa. Commonwealth National Land 618, 219, (citing 395 A.2d 621 Adjust- Easttown Investment Co. v. of Surrick, ment, See 476 [1965]). 419 Pa. v. Chesterdale 108; Willistown at Pa. at 382 A.2d Inc., Farms, 445, 448-49, A.2d de facto zoning or partially exclusionary involving Cases particu- for a question provision on the of whether ‍​‌​​‌‌​‌‌​‌​‌‌​‌‌​​​​​​​​​‌‌​​‌​‌‌​‌​‌​​​‌​​‌​‌‌‍turn reasonably in the at issue accommodates lar use ordinance that In these immediate demand for use. projected growth become influencing population certain factors cases a question whether relevant housing particular type and basic already allows is designated impermissibly areas neverthеless stock housing of exclusionary type the amount of because limited when unfairly the ordinance is permitted under demand for it. compared projected to the immediate and Surrick, See 382 A.2d at principle the fair share underpinning

Considerations zoning regulation totally challenged are irrelevant when It apartments. such as is housing excludes a basic form of often derives from the apartments true that demand for See, Appeal e.g., regional population growth. pressure Girsh, (township at 398 could Pa. at people “choose to take as permitted only many not be freezing housing, popula live in effect single-family can levels”). present Similarly, permitting any type at near tion will, ordinarily, new construction within population. community’s in an in that result increase However, necessarily is not correlat- housing demand Regardless projected growth population growth. ed to desire many presently there families who patterns, may are Schuylkill Township but who make their home cannot community they because effectively zoned out house duplex. or a purchase single-family either afford Accordingly, Schuylkill Township’s contention that its zon- ing ordinance does not anyone exclude population because projections no growth show little or in the community untenable.6 Because the Township has failed to establish that the total exclusion of apartments a legitimate serves public purpose, ordinance is unconstitutional insofar as it fails to provide apartments or for other types multi-family housing.

We must next determine judicial relief to which appеllants are Appellants entitled. contend they are relief, i.e., entitled to definitive automatic and total approval of their development plan. Conversely, appellee argues that appellants’ is limited remedy to the additional develop rights provided ment them under the amendment passed by the in purpose 1975 for the of curing any consti tutional infirmity created by total ban on multi-family housing contained in the zoning ordinance as originally enacted.7 Board, 219,

In Casey Zoning 228, Hearing 464, we observed that “an applicant, suc- in having cessful a zoning ordinance declared unconstitu- tional, should quest not be frustrated in his by for relief a retributory township.” Accordingly, we held that a provision adopted aby municipality which cures the consti- tutional infirmity but which was not considered or adver- tised prior filing of the challenger’s application for ordinance, review of the may given not effect for purposes fashioning the appropriate relief to be awarded Supervisors population 6. The Board of found that forecasts indicate Valley region, general, experience growth that the Delaware in will no 2000, 91, years during between the F.F. and that that same period Schuylkill Township experience appreciable population will no addition, growth. Schuylkill Township In the Board determined that Area, Philadelphia Metropolitan is located outside F.F. is 107, by public transportation, not serviced geographically F.F. and is Valley isolated virtue of the North Hills from the Main Line area experiencing population growth and which is serviced 100, Route 30 and a commuter rail linе. F.F. 102. See, 7. supra, at 417 n. 3. Id., 229, 328 A.2d challenger. 459 Pa. at successful determination, to hold we reasoned that reaching

otherwise: municipality power pre- a grant effectively

would from relief challenger obtaining meaningful any vent zoning ordinance. The attack on a after a successful challenger by penalize could successful designed to cure enacting amendatory an designed but to zone around infirmity, also constitutional relief, few with such an Faced obstacle challenger. to have expense necessary the time and undertake would declared unconstitutional. zoning ordinance a Accordingly, Casey Id., 228, 328 A.2d at 468.8 459 Pa. at that appellants and mandates litigation the instant governs Casey confronting the was whether precise issue Court 8. The Code, July Municipalities Planning Act 1009 of the former Sеction (since repealed) should be P.S. § P.L. 53 municipality defi- permitting as to cure constitutional construed ciency landowner-challeng- judgment had been entered for before er. pertinent provided, part, as follows: Section 1009 any validity challenge to appeal Where the involves power the ordi- map to declare ordinance or the court shall have and, nance, map there- any provision invalid addition or thereof to, power to: shall have (i) provided judgment in favor of the landowner Enter section give (ii) Stay judgment time to for a limited the effect its modify ordi- governing body opportunity or amend the an to local opinion map of the court. accordance with the nance 1009(2) stated, (ii) interpret Section already declined to so As we right interpretation the of a success- would frustrate because such an Instead, challenger requested we determined that the relief. ful to his prevent in which the munici- provision to the situation was intended left, zoning temporarily, valid ordinance. pality without a would be We noted: defective, constitutionally is be Once a ordinance found to ordinance, merely not the zon- judgment the the invalidates entire By staying particular the "effect” of its ing of land. on a tract time, the chaotic situation judgment a court can avoid for limited temporarily un- remained if the which would arise given opportunity to cure the defec- municipality is an The zoned. court of the with the determination in accordance tive ordinance seeking by applications landowners to fear of a flood without original invalidity. ordinanсe would advantage the The take permitted be to develop their property as proposed, subject restrictions, certain regardless reasonable of how that land is currently zoned.

Nevertheless, we approval believe that the developer’s plan but, instead, is not automatic predicated must be the of the suitability proposed site and various health and safety considerations. As Commonwealth Court explained Ellick v. Board in its Supervisors, decision 411-12, Commonwealth 333 A.2d at 244-45: governing body determines its ordinance is [I]f defective, it totally prohibits because use proposed the landowner, challenging then governing body must permit challenging landowner to develop his land as proposed in the “plans and other materials” submitted challenge, course, with the provided, of thаt what reasonable, submitted is and not to the injurious public health, safety, welfare and morals. governing

The body may totally not prohibit success- ful challenger’s proposed development may nor it subject proposed and burden- unreasonable Casey, supra. See some restrictions. governing body however, may, subject the landowner’s submitted plans to reasonable restrictions be otherwise may properly provided put its ordinance. To it another way, challenger the successful required will still be requirements, abide all the reasonable building restrictions, measures, density safety sewage regulations, requirements, and water as well as all other reasonable applicants subsequent remain in be effect would on construc- municipality’s tive notice of the intent to amend defective and, therefore, rights ordinance would unable to obtain vested effect, upon invalidity. based the ordinance's moratorium upon challenging would be effectuated amended, building application permits and the until an constitu- tionally permissible ordinance would be enacted. Id., (footnote omitted). 459 Pa. at 328 A.2d at 468-69 Although particular statutory provision under consideration in Casey repealed, reasoning underpinning been has since our deci- applies equal sion in that case remains sound and force with litigation. presented situation in the instant See P.S. § 10609.2 and 11004(2)(a) Legislature’s ). (representing response Casey regulations gener- and other zoning, building, subdivision pro- or class of use construction ally applicable to the here, usage we by By the landowner. class posed zoning ‍​‌​​‌‌​‌‌​‌​‌‌​‌‌​​​​​​​​​‌‌​​‌​‌‌​‌​‌​​​‌​​‌​‌‌‍found in usually mean are those classes which residential, commercial, agricultural, as ordinances such and industrial. Municipalities of the 1011(2) are that Section

We aware courts, factors which on Code9 enumerates certain Planning invalid, are consider to declaring Appellants relief.10 contend Section fashioning reads, not 11011(2), currently may provision this Court or the Court of Common either by considered October, it remand was amended Pleas on because proceedings. after the start these 1, 1972, 1011(2), as amended Act No. § 9. Act of June P.L. 11011(2). 53 P.S. § P.L. No. of October 11011(2) provides Specifically, that: Section court, provided with the standards If the in accordance map or or an ordinance or decision subsection finds that unlawfully brought up for review has been order thereunder which development prevents use which has been described restricts a or or through plans other materials submitted and the landowner municipality body, whose governing agency or officer the the may question appeal, order the on the it or failure to act is in action may approved or it development use as to all elements or described and refer other elements approved as to some elements order having jurisdiction body, agency thereof for governing the or officer adoption proceedings, including of alternative restric- the further tions, issuing opinion and the court’s order. in accordance with (i) following: the locational the its order the court shall consider including general suitability proposed uses the of the site for the roads, facilities, regard major sewer of the site with location public or the supplies, other service facilities schools and water plan and comprehensive ordinance of and exist; (ii) regional impact proposal county they of the if the housing network, needs, public transportation other facilities; (iii) suitability the site for the inten- services and wetlands, woodland, soils, slopes, proposed by the site’s tion of use features; plains, aquifers, resources and other natural natural flood soils, slopes, (iv) impact proposed use on the site’s wetlands, woodlands, plains, natural resources and natural flood features, destroyed, protected degree to which these are any environ- adverse the resources to tolerance of preserva- (v) proposal impact on the impacts; mental public agriculture which are essential and other land uses tion of health and welfare. 424 Krenzelak, 373, 382, Krenzelak v. 469 A.2d

987, 991 we stated that: application

Retroactive legislation new will offend if, process the due clause balancing the interests of both parties, such application would be unreasonable. See Chase Corporation Donaldson, Securities v. 325 U.S. 304, 315-16, 1137, 1142-43, 65 (1945); S.Ct. 89 L.Ed. 1628 Valladares, 244, Valladares v. 80 App.Div.2d 250-51, 438 810, (1981), aff'd, 388, N.Y.S.2d 815 55 N.Y.2d 449 N.Y. 687, 434 (1982). S.2d N.E.2d 1054 See Hoch generally man, The Supreme Court and the Constitutionality of 692, Retroactive 73 Legislation, Harv.L.Rev. 694-95 (1960). Traditionally, retrospective laws which have been “ deemed are reasonable those which ‘impair no contract right, and disturb no vested only remedies, but vary cure in proceedings fair, defects otherwise and do vary not existing obligations contrary to their en situation when ” tered into prosecuted.’ and when Fenner, Smith 399 v. 161 A.2d 154 (quoting Barnes Speice, Pa.Superior boro Borough Ct. [1909]). Lair, See also Costa v. 241 Pa.Superior Ct. At time appellants filed their challenge the Town- ordinance, ship’s zoning had a they right to use substantive proposed their land as in they development plan their ab- sent prohibiting a valid that proposed use. Our Court has determined that the Township’s zoning ordi- nance the construction prohibiting apartments on appel- lants’ land unconstitutional without respect to consid- analysis. erations embodied a fair share 1011(2) require Section would now a court em ploy analysis determining a fair share the relief to be who, appellants, awarded those like the chal successfully lenge ordinance on grounds.11 constitutional Such an is irrelevant analysis on this record where local government made provision has no for multi-family hous Moreover, ing. applied if to appellants, this portion See, particular, l(2)(i) (2)(ii). Sections affect, conceivably extinguish, pre- their could statute right proposed with their existing proceed substantive supra the restrictions discussed development subject 1011(2) application of Section 589-590. Such a retroactive fashioning provisions inappropriate would be fair share appellants are entitled. To judicial relief to consideration process. so offend due The court’s do would statute, or its provisions of the amended of the other zoning authority for its consideration remand to the local not, them, are rights they due since process not violate does themselves, holding today our in of inconsistent with and in not be considered deter- principles share are that fair zoning ordinance which constitutionality of mining the However, in consid- multi-family housing. excludes totally court, factors, Super- Board of or the ering other those it, to must visors, subsequently is remanded if the case materiality, or the devel- showing of their the burden place codes, on the pre-existing opment’s incompatibility with Board. Court’s

Therefore, we reverse Commonwealth of Pleas Common order and remand record Court unless the development appellants’ proposed for approval plan incompatible with appellee appellants’ can show reasonable, safety and codes pre-existing health the site or lands, em or their relating structures regulations apply which the court determines placement on lands 1011(2) Pennsylvania plan. See Section Code, 11011(2); Ellick v. Board 53 Municipalities P.S. § 413-17, A.2d Pa. Commonwealth at Supervisors, 17 246-49. proceed- Pleas to Common and remanded

Reversed this ings opinion. consistent with C.J., opinion. NIX, concurring files a dissenting opin- McDERMOTT,J., concurring files ZAPPALA, J., dissenting portion joining ion with only.

ZAPPALA, J., files concurring dissenting opinion McDERMOTT, J., with joining dissenting portion only.

NIX, Justice, concurring. Chief I challenged am satisfied that on this record the zoning ordinance is flawed under either the constitutionally “total exclusion” theory Girsch, announced the Appeal Pa. or the “fair share” principle Zoning followed v. Hearing Surrick Board Providence, Upper 382 A.2d 105 In these instances there is where a successful challenge to an imperative unconstitutional ordinance it is that, Court to mandate subject reasonable modifica- tions, the township municipality ultimately adopt must plan. underlying developmеnt only Not does such poli- cy guard against any possible retaliation against litigant board, opposed who the zoning but it also serves to deter passage unconstitutional ordinances. As we in Casey reasoned Zoning Township, Warwick (1974): we must Finally, determine whether a court has the power grant applicant-challenger to an definitive relief upon rendering zoning constitutionally ordinance infirm. appellee building permit seeks a for the erection of multi-family his dwellings on tract of land located in Court, Township. pursuant Warwick This to its disposi- tion petition for enforcement of order in our Girsh Appeal has that in this implicitly held courts Common- wealth do have such if power. “Obviously, judicial re- view of is to anything local action result in more farce, than a the prepared go courts must be to bеyond mere grant invalidation and To definitive relief.” forsake a challenger’s development plans reasonable after all the time, effort and invested in capital challenge such a is inequitable. grossly

Id., 230, at (footnotes omitted). 459 Pa. 328 A.2d at 469

427 to decide whether is for the Naturally, the town- appropriate part are more in one of apartments Girsh, supra, Appeal another, Pa. 437 at ship than of Appeal As at 399 n. 6. stated 246 n. 263 A.2d we of Girsh, supra, “Certainly township] protect can its [the apartments built in to be requiring attractive character height, (reasonable) set-back, open space, with accordance refuse to it cannot light-and-air requirements, and other but Id., Pa. at living.” any provision apartment make (footnote omitted). Thus, appro- it is case developer’s in the be plan that instant priate reasonable restrictions.” approved subject to “certain Court’s I Accordingly, would reverse Commonwealth Pleas to remand the case to the Court of Common order and to make required any adjustments may consider compatible zoning plan the overall proposed plan with Township. Justice, McDERMOTT, dissenting. concurring I is unconsti- challenged zoning that agree However, thing majority that is the only tutional. I can opinion agree. with which I a different legitimate apply no reason Firstly, see explicitly ordinances which standard review uses, applied the standards ordi- exclude certain than Thus, I would hold implication. nances which exclude v. Surrick principle “fair announced share” Providence, Upper Township Board Zoning Hearing such as (1977) A.2d 105 is relevant cases 476 Pa. Girsch, Appeal this.1 See 263 A.2d case, (“At of this purposes least for the Zoning Upper Hearing In Surrick Providence, said: Court political cannot isolate proposition subdivision basic [It a] surrounding it. To ignore housing of the zureas needs itself principle, concepts, adopted implement the "fair share” we these plan political provide and land-use requires units to for which local categories legitimate of regulations meet needs all which people may desire to live within its boundaries. who Id., at 382 A.2d at 108. 476 Pa. provide apartments failure to for anywhere within the Township must legal viewed as the ‍​‌​​‌‌​‌‌​‌​‌‌​‌‌​​​​​​​​​‌‌​​‌​‌‌​‌​‌​​​‌​​‌​‌‌‍an equivalent of be. explicit prohibition apartment total zoning houses ordinance.”).

Therefore, if a explicitly or implicitly excludes the construction of multi-family dwellings, pre a sumption of would raised uncоnstitutionality be and to prove burden shifted to that municipality the exclu sion public health, morals, bears some relation safety, Quarries, Exton Inc. v. Zoning general or welfare. Cf. Adjustment West Whiteland Township, similar on (imposing burden township uses). totally pre excludes business That could, however, sumption be showing rebutted a region and the municipality surrounding it not logical were growth areas and development; subject highly developed. Surrick, su already was pra, 382 A.2d at 110. case,

In the present the Board of Supervisors concluded a as matter law that Schuylkill was not logical for growth development. area This conclusion was based upon findings fact such as the following: township is less to major accessible centers employment municipalities region; than other in the the projected popu- growth 1,000 lation for the township by is less than people; municipalities region other in the will have more rapid population Township; increases than will Schuylkill specific there are no plans employment increase in the township, although plans such exist do county-wide basis; Bucks, Valley Chester, the Delaware (consisting Delaware, Montgomery Philadelphia counties Penn- Gloucester, sylvania Burlington, Camden, and Mercer Jersey) experience counties New will no population 2000; growth between 1978 and township outside area; and, Philadelphia metropolitan there is no need high in the density housing township. reviewing

When appeal is not our function However, fact finders. it is our function ensure that support findings the made in the record to is evidence there legal addition, to review the required In we are below. tribunals, аs the lower as well arrived at the conclusions ex rel. Gib- applied. Commonwealth they standards DiGiacinto, (1981). On this son for the above support does some appear record there be Judge I However, the learned Stive- findings. while believe I conceive a presented, the facts adequately weighed ly one utilized the comparison than the larger area learned court. the precisely concept not defined

Although we have made it growth, decisions have logical prior area our not in isolation. The municipality may stand clear that region surrounding and it must be studied municipality the Elocin, Inc., 501 Pa. a whole. See Appeal Co., Inc., Appeal M.A. Kravitz Among 460 A.2d the factors to be ana- distance, in and in following: miles are both lyzed time, areas; accessibility of driving from majоr urban rail including regional high-speed public transportation lines; head- parks, corporate proximity industrial opportunity; and quarters, employment other sources trends in population from and major highways; the distance that surrounding municipalities and in both part considered to be might logically realistically region.2 case and the courts focused so this the board lower Township ignore as to all evi- narrowly Schuylkill that the area sur- dence in the record that demonstrated evidence constantly growing. is That rounding enclave less than one hour’s Schuylkill that is established region Schuylkill Township large often example, is 2. For located generally Valley to include which is considered called the Delaware Jersey River from Philadel- in New across the Delaware four counties Pennsylvania. phia addition to the five counties south-eastern However, Jersey probably unlikely those four New counties it is upon housing in impact the demand for would have much of a direct hand, neighboring municipalities Schuylkill Township. On the other Chester, Delaware, Montgomery would almost certain- counties ly affect that demand. driving time from city center it Philadelphia is on edge of the Philadelphia Metropolitan Standard Statisti- Area. Furthermore, cal located within minutes Pennsylvania Turnpike, the Schuylkill Expressway, King of Prussia office and retail complex,3 and the develop- ing high-technology corridor along Route 202. There are large parks regional industrial headquarters of major corporations in nearby townships. located A township in a region such cannot growth be said be in an area of no or оne that will be immune from expansion. suburban prior development

On the issue of within the township the of Supervisor Board made no findings. However, factual the record indicates that of as apparently 70% the township was either farm land or was undeveloped. Ap- was proximately consisting residential mostly hous- 17% es built the 1930’s and 1940’s. Industrial and commercial areas accounted less than of the township’s land.4 1% I this record the zoning

On would conclude that ordinance of Schuylkill Township it in April as existed fos- tered an unconstitutional exclusion. remaining

On the I issue remedy strongly disagree with the majority’s discussion of 1101 of Section the Munici- palities Planning (M.P.C.)5 Code

That section forth sets factors to be considered courts when awarding relief. The section provides part: 1011 Judicial Relief.

§ In a appeal the court shall have power any declare map or invalid and aside set or years prior present controversy 3. Ten commencement of this Court Company decided National Land and Investment v. East Adjustment, town opinion we being noted "a market for residential sites is generated by growing the fast complex industrial-commercial in the King Prussia-Valley Forge area to the north of Easttown Town ship." (Easttown Township 419 Pa. at 215 A.2d 605. is in County Schuylkill Township). eastern Chester south Schuylkill Plan, Township: Development pp. (Exhib- 4. A 2-6 to 2-10. A-24). it 5. Act of October P.L. seq., § 2 No. et 53 P.S. governing action, or order of decision modify any up on brought municipality agency or officer body, that: if it determines only appeal, good faith or made has not acted (a) municipality or of its ordinances adoption in the attempt fide bona thereto, the statu- to meet amеndments maps, any or for nonexclusion- requirements and constitutional tory ary zoning; ... provid- standards court, in accordance with the

(2) If the map or (1), finds that an ordinance ined subsection brought up which has been or order thereunder decision or restricts unlawfully prevents for review landowner by the has been described or use which gov- and other materials ‍​‌​​‌‌​‌‌​‌​‌‌​‌‌​​​​​​​​​‌‌​​‌​‌‌​‌​‌​​​‌​​‌​‌‌‍submitted through plans whose or officer of erning body, agency may it question appeal, act is in or failure to action to all approved use development or order the described elements as to some approved or it order may elements agency governing body, to the and refer other elements proceed- for further thereof having jurisdiction or officer restrictions, in of alternative including adoption the ings, issuing In and order. opinion the court’s accordance with (i) the following: the shall consider its order the court proposed the uses of the site for suitability locational to regard with of the site including general location facilities, and supplies, schools roads, water sewer major plan comprehensive facilities or the public other service and the and ordinance of on (ii) proposal of the exist; impact county they if network, and needs, transportation regional housing (iii) facilities; suitability and services public the other the site’s by proposed intention of use of the site for the woodland, wetlands, plains, aquifers, flood soils, slopes, features; (iv) the and other natural resources natural soils, slopes, site’s use on the proposed of the impact and natural resources woodlands, wetlands, plains, flood protected these are features, degree to which natural develop- of the resources the tolerance destroyed, or (v) and any impacts; ment adverse environmental impact proposal agriculture on the preservation of other land uses which are essential to public health (Emphasis added.) and welfare. argued, P.S. 11011. Appellants majority have and the §

agrees, this is inapplicable section case present However, since was not effective until 1978. Section 8 of 249, provides procedures Act that the established P.S. 11011(2) shall apply substantive challenges are jurisdiction any within court the effective date fact, the act.6 The majority inexplicably ignores this that appellants concludes have a substantive right devel- op derogation their in this Act. an property Such inter- pretation is simply erroneous and should not be allowed to stand. majority deciding

The further concludes that the ques- in Casey Zoning remedy, holding tion of our Hearing Township, Board Warwick Pa.

(1974), prevents considering lower court from any ordi- regulation nance which was not effect at the time of their initial I challenge. agree cannot with this conclusion. Casey, was the basis Court’s decision applicant, “that recognition having an successful a zon- ing ordinance declared unconstitutional should not be frus- retributory trated his request a relief town- Id., ship.” (emphasis at 468 added). obviously was seeking protect Court provides: 6. Section 8 (a) Anything contrary Section 8. in this act notwithstand- procedures ing by apply section 1011 of shall established this act challеnges jurisdiction any to substantive within the court on the effective date of this act. (b) (a) hereby provisions it is declared that the of subsection are problems found to be alleviate needed to caused uncoordinat- municipalities ed tire and essential to mainte- health, safety nance of the welfare residents of the Commonwealth. “penalize from municipality a which would landowner [him Id. challenger.” the successful as] Casey has an absurd extreme Today’s decision carried to mandating of a approval huge multi-family complex, single-acre-zoned community, in the middle of a situated that the absen- the rather fortuitous circumstance based prior house to an of this land arrived at the court tee owner zoning amendment. apparently well-intentioned Casey, anticipated in such I do that the Court not believe intended, However, if such a result was result. even a absolute of it mandates a modification this absurdity to a permitted good be make rule. Communities should ordinances, having a their without attempt amend faith remind foisted them to forever elephant upon possible white id. Casey, See Dissenting of their errors. past them Jones, C.J. Opinion, pleas to the court of common

I would therefore allow as appellants’ tract present account the take into determining an considered when of the factors one remedy. appropriate

ZAPPALA, J., dissenting portion this joins opinion.

ZAPPALA, Justice, dissenting. concurring ordinance ruling I the Court join with ordinance invalid. Because the challenged this case is permitted dwellings multi-family explicitly prohibits Appeal, our decisions Girsh governed by use case Land and National Pa. 263 A.2d 395 Adjust- Co. v. Easttown Investment ment, finding A that an 504, place operates use given explicitly prohibits ordi- prove on the heavy burden relationship” legit- to a a “more substantial nance bears morals, wel- (health, general safety, public purpose imate fare), substantial, is, more than would necessary be See, support zoning provision generally. Beaver e.g., 571, Co. v. Osborne 445 Pa. 285 A.2d Borough, Gasoline (1971); Quarries Exton Inc. v. Zoning Board Ad- 43, (1967). 425 Pa. 228 A.2d 169 This burden was justment, met.1 clearly not however,

I disagree Majority, with the as to the remedy upon this of a applicable finding Majority violation. The language cites from Casey Zoning Board Hearing 219, Township, 459 Pa. to the Warwick litigant effect that a successful is entitled to relief which recognizes propriety challenge, of his his ef- rewards ordinance, in testing legality prevents forts by “retributive” action correct wоuld challenger but leave the To illegality unbenefitted. proceed directly unobjectionable language from this “[accordingly, governs statement the instant Casey and mandates that litigation appellants permitted be develop property subject their proposed, reasonable restrictions, regardless how that land is currently zoned,” at 421-422 (emphasis added), is to “answer” the question presented by avoiding it. four after our years Casey, legisla-

Some decision Municipalities Planning ture amended the Code to enumer- fashioning ate the factors to considered courts in relief where it was found that a ordinance was 1978, 249, 6, Act of P.L. No. invalid. October § Act of June P.L. No. 53 P.S. amending Majority, 1. Unlike the I think it relevant to examine whether the area logical growth place was a and the related already highly question developed. whether the area was Surrick v. Zoning Hearing Upper Township, Providence inquiries analysis, These initial of the Surrick test, may properly preceding what be characterized as the fair share background against challenged which the reasonableness of a set Though highly unlikely, possibility ordinance can be assessed. might highly developed, must not be foreclosed that an area be so characteristics, explicit prohibi- peculiar have such other that even an scrutiny. tion could survive 11011(2). The sim- Majority eviscerates statute tagging the factors enumerated with the label plistically reiterating analysis” previous “fair share discussion inapplicable explicit share to cases of analysis” that “fair It is undeniable that the considerations man- prohibition. rеsemble the elements the greatly dated the statute not, however, analysis.” The resemblence does “fair share legislature sought impose the “fair that the demonstrate is, believe, I It no more than a all cases. analysis” share the and our case law of the fact that both statute reflection the purposes around fundamental on “fair share” revolve zoning enactments. valid the of this statute was appear purpose

It would develop- plan of the overall local integrity the maintain allowing challeng- a successful at the same time ment while con- development with some proceeding the er benefit which has been invalidated. specific plan trary to the permit statute does not (It the should be noted from reap no benefit challenger would the remedy wherеin are to to the court options available challenge. his all as to approved use “order the described as to some elements approved it elements or order [to] body ...” P.S. governing refer other elements this disapproves 11011(2).) analysis Majority Without ‍​‌​​‌‌​‌‌​‌​‌‌​‌‌​​​​​​​​​‌‌​​‌​‌‌​‌​‌​​​‌​​‌​‌‌‍law, prior case applies balancing of interests legislative McDer- Justice results, described aptly so drastic with was of such results This, although avoidance mott. By requiring legislation. for the likely impetus for regard development without of a approval total virtually exists, Majority thwarts region character indeed, statute, purpose of this purpose legislative provide growth generally legislation —to rational, according to a and resources of land efficient use plan development. regional comprehensive dissenting portion J., McDERMOTT, joins dissenting opinion. concurring and

Case Details

Case Name: Fernley v. Bd. of Sup'rs of Schuylkill Tp.

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 27, 1985

Citation: 502 A.2d 585

Docket Number: 11 Eastern District Appeal Docket

Court Abbreviation: Pa.