19 Pa. Commw. 514 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal filed by Warminster Township (Township) from an order of the Court of Common Pleas of Bucks County, directing the amendment of the Township’s zoning ordinance and zoning map by the adoption of a proposed curative amendment which had been presented to the Township’s governing body by Robert P. Olson and Neshaminy Holding Corporation (hereinafter collectively referred to as Olson)
In 1973 Olson was the owner of approximately 46 acres of land located in an area classified “Industrial” under the Township’s zoning ordinance. On October 19, 1973, Olson filed a challenge to the validity of the zoning ordinance alleging that it failed to provide for townhouse usage anywhere in the Township. The challenge included both a proposed curative amendment to the zon
“A dwelling having two (2) or more dwelling units, not having party walls forming a complete separation between individual dwelling units, and not having more than two bedrooms in each dwelling unit.”
The court concluded that the zoning ordinance’s description of garden apartments did not provide for townhouse development which the court found to be a legitimate and proper residential use in the Township. The court noted that the Bucks County Planning Commission’s report had recommended that the Township “seriously consider adopting an ordinance change” which would
In its appeal to this Court the Township contends (1) that the court below erred by holding that the Township’s zoning ordinance was unconstitutional and (2) that even if the court below did not so err, it did' err by ordering the adoption of Olson’s proposed curative amendment.
We commence our discussion with the recognition that in 1972 the General Assembly amended the MPC and provided in section 1004(1)(b), that substantive challenges to the validity of a zoning ordinance can be submitted directly to the governing body together with a request for a curative amendment. Unfortunately, however, Article X of the MPC, which sets forth the procedure involved in such challenges, is not entirely clear on its face, and, as a result, there has been a great deal of confusion in this area of the law. This Court has recently had the opportunity to consider some of the problems involved in challenges pursuant to section 1004(1)(b) of the MPC and, hopefully, our opinions will provide some guidance in this area. See Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975); Robin Corporation v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975); Hess v. Upper Oxford Totvnship, 17 Pa. Commonwealth Ct. 399, 332 A.2d 836 (1975)) Warren v. Ferrick, 17 Pa. Commonwealth Ct. 421, 333 A.2d 237 (1975) and Board of Commissioners of McCandless Township v. Beho Development Company, Inc., 16 Pa. Commonwealth Ct. 448, 332 A.2d 848 (1975).
The Township contends the lower court erred by holding that the zoning ordinance was unconstitutional because it made no provision for townhouses. We have reviewed the record in this case and it clearly shows that the Township’s zoning ordinance does not provide for townhouse usage anywhere in the Township. We have held in Camp Hill Development Co., Inc. v. Zoning Board of Adjustment, Borough of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974), that townhouses are a legitimate and accepted form of development entitled to the same recognition which was accorded to apartments by our Supreme Court in Girsh Appeal, 437 Pa. 237, 253 A.2d 395 (1970). Since Olson succeeded in proving that the ordinance made no provision for townhouses, the burden was upon the Township to show what public health, welfare and safety interest the ban on townhouses was intended to protect. See Beaver Gasoline Company v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971). The Township failed to meet its burden and, therefore, the lower court correctly held that the subject ordinance was unconstitutional.
We fully recognize that there are so many architectural types or styles of residential housing that it would be difficult, if not impossible, for a municipality to cover every conceivable design in its zoning ordinance.
The Township contends that the lower court erred by ordering the adoption of the proposed curative amendment. We agree. In Ellick, supra, we pointed out that the courts were never intended to dictate legislative matters and that, therefore, a court may not order a curative
In this case the court ordered the municipality to adopt the curative amendment and, under our holding in Ellick, supra, that was an error of law. Having correctly held that the ordinance was unconstitutional the lower court was required to review Olson’s proposed development rather than the proposed curative amendment. Therefore, we must remand this matter to the court below in order to permit it to pass upon the plans and specifications submitted with the challenge. In Ellick, supra, we pointed out that section 1011 of the MPC, 53 P.S. §11011, authorizes the court to order the proposed development or use approved entirely, or to order it approved in part and refer other elements back to the municipality. If the lower court decides to refer the proposed plan back to the municipality, then the municipality may not defeat the proposed use'by imposing unreasonable requirements or restrictions. In such a case,
In summary, we hold that the court below did not abuse its discretion in finding that the Township’s zoning ordinance failed to provide for townhouses anywhere within the Township, and by concluding that the failure to so provide in the instant case rendered the ordinance unconstitutional. We also hold that the court below committed an error of law by ordering the Township to adopt the curative amendment presented by the landowner. We therefore
Order
And Now this 6th day of June, 1975, based upon the above discussion, the order of the Court of Common Pleas of Bucks County, dated July 16, 1974, is hereby vacated, and it is ordered that this entire matter be remanded to the Court of Common Pleas of Bucks County for the purpose of reviewing the plans and specifications presented by Robert P. Olson and Neshaminy Holding Corporation pursuant to section 1Ó11 of the Pennsylvania Municipalities Planning Code, 53 P.S. §11011, in a manner not inconsistent with the above opinion.
. Olson is the equitable owner and Neshaminy Holding Corporation is the legal title holder of the land involved in this case.
. For example, the modular-home style exhibited in exotic forms of construction as was built and displayed in the “Habitat” located in Montreal, Canada would be very difficult to describe as a residential usage in a zoning ordinance. We recognize this as a problem. However, our Supreme Court, in residential usage cases,