Case Information
*1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA KS Development Company, L.P. and :
KS Development Company 2, L.P. :
:
v. : No. 2302 C.D. 2015 : Argued: June 6, 2016 Lower Nazareth Township and :
AAA of Northampton County and :
Robert and Beverly Hoyer and :
Woodmont Properties, LLC :
:
Appeal of: Woodmont Properties, LLC :
KS Development Company, L.P. and :
KS Development Company 2, L.P., :
Appellants :
:
v. : No. 2312 C.D. 2015 : Argued: June 6, 2016 Lower Nazareth Township and :
AAA of Northampton, :
Robert and Beverly Hoyer, :
Wind-Drift Real Estate Associates, :
Woodmont Properties :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION BY
SENIOR JUDGE COLINS FILED: October 26, 2016
In these consolidated appeals, KS Development Company, L.P. and KS Development Company 2, L.P. (collectively KS Development), and Woodmont Properties, LLC (Woodmont), seek to reverse the October 23, 2015 order of the Court of Common Pleas of Northampton County (Trial Court) affirming the January 14, 2015 decision and order of the Lower Nazareth Township Board of *2 Supervisors (Board), which denied KS Development’s request for a curative amendment [1] to the Lower Nazareth Township Zoning Ordinance (Ordinance).
Before this Court, KS Development and Woodmont argue that the Ordinance totally excludes apartments as a permitted use within Lower Nazareth Township (Township) and that, in the alternative, the Ordinance fails to accommodate for the Township’s fair share of multi-family housing. KS Development and Woodmont [2] each seek to cure the alleged constitutional defect in the Ordinance with amendments that would permit construction of apartments in the Office Park District (OP District), however, the restrictions each amendment places on apartment use within the OP District differ. For the reasons that follow, we affirm the order of the Trial Court. [3]
*3
In the seminal case
Surrick v. Zoning Hearing Board of the Township
of Upper Providence
,
Pursuant to
Surrick
, where a challenge to a zoning ordinance alleges
that the ordinance effects a or partial exclusion of a class of housing, the
courts employ a three-part test to determine the constitutionality of the zoning
ordinance. The first step is to determine whether the community is in the path of
growth and in a logical place for growth and development.
Surrick
, 382 A.2d at
108-109;
see also BAC, Inc. v. Board of Supervisors of Millcreek Township
, 633
A.2d 144, 147 (Pa. 1993). Factors to consider in analyzing whether the community
is in the path of growth include: (1) projected population growth; (2) anticipated
economic development; (3) access by major roads or public transportation; (4) the
growth and development of neighboring municipalities; (5) proximity to a large
*4
metropolitan area; and (6) attempts by developers to obtain permission to build.
Surrick
, 382 A.2d at 111-112;
Heritage Building Group, Inc. v. Bedminster
Township Board of Supervisors
,
When it is demonstrated that a community is in the path of growth, the
second step in the
Surrick
analysis is to determine the level of development in the
area. 382 A.2d at 110. Factors to consider at this stage of the
Surrick
analysis
include the municipality’s population density data, its percentage of total
undeveloped land and the percentage of its land available for the class of housing
alleged to be unconstitutionally constrained.
BAC
, 633 A.2d at 146-147;
New
Bethlehem Borough Council v. McVay
,
If it is determined that the community is situated in the path of
population expansion and is not already highly developed, then the final stage of
the analysis asks whether the municipality has provided for its “fair share” of land
for the class of housing under consideration.
Surrick
,
In analyzing whether a exclusion of a class of housing exists
within the challenged zoning ordinance, the
Surrick
test does not replace but works
in conjunction with the presumption that a zoning ordinance is constitutional and
imposes a heavy burden upon the party who seeks to challenge its validity. 382
A.2d at 112 n.13;
National Land
, 215 A.2d at 607;
Montgomery Crossing
Associates v. Township of Lower Gwynedd
, 758 A.2d 285, 287 (Pa. Cmwlth.
2000). The presumption of constitutionality, however, is just that—a presumption.
This presumption is rebuttable where the burdened party presents substantial
evidence of the exclusionary nature of the challenged zoning restrictions.
BAC
,
*5
In the instant matter, KS Development relies on the Surrick analysis only in the alternative, arguing instead that the Township’s zoning ordinance effects a de jure , or total, exclusion of apartments as a residential use rather than the de facto exclusion at issue in Surrick and its progeny.
KS Development concedes that, on its face, the Ordinance provides for apartments by right in the Medium Density Residential District (MDR District). Ordinance § 702(A)(9)(b). In addition to the MDR District, the Appellees contend that apartments are permitted in the Planned Industrial Commercial District (PIC District) and the Mixed-Use Overlay Light Industrial District (Mixed-Use Overlay). The Appellees’ argument is premised on the contention that a personal care center, life care center, and a retirement village can all be considered “apartments,” as that term is defined in the ordinance. The Appellees’ argument strains credulity and belies the plain meaning and structure of the Ordinance. [5]
The term “dwelling” is defined in the Ordinance as, “[a] building used as non-transient living quarters. The term ‘dwelling’ shall not include boarding house, hotel, motel, hospital, nursing home, fraternity, sorority house or any group residence.” Ordinance § 202. Apartments are listed within the Ordinance as one category of “dwelling,” in addition to “modular home” and “single family detached dwelling,” which includes mobile/manufactured homes, single family semi- detached dwelling, townhouse, and two-family detached dwelling. Id . *6 Apartments are specifically defined within the Ordinance as “[t]hree or more dwelling units within a building. The individual dwelling units may be leased or sold for condominium ownership.” Id . The Ordinance also defines the term “dwelling unit,” providing:
One dwelling occupied by only one family and a maximum of 2 persons who clearly function and are employed as domestic employees….Each dwelling unit shall have its own sanitary, sleeping and cooking facilities and separate access to the outside or to a common hallway or balcony that connects to outside access at ground level. A dwelling unit shall not include either or both of the following: a) two or more separate living areas that are completely separated by interior walls so as to prevent interior access from one living area to another, or b) two separate and distinct set of kitchen facilities.
Id . The Appellees contend that because apartments are defined as containing dwelling units and a personal care center, life care center, and retirement village may also contain dwelling units than each of these uses can be considered as including apartments. However, it is clear that under the Ordinance the presence of a “dwelling unit” does not mean that the use permitted is a “dwelling” and it is equally clear that “apartments” are “dwellings” whereas personal care centers, life care centers, and retirement villages are not “dwellings,” but separately defined categories of use that contain residential features.
A “personal care center” is defined in the Ordinance as “[a] residential use providing residential and support services primarily to persons over age 60 and/or disabled and that is licensed by the Commonwealth of Pennsylvania.” Id . A “life care center” is defined in the Ordinance as “[a] residential use designed and *7 operated exclusively for adults of 55 years of age or older and/or disabled persons that includes a nursing home[ [6] ] and certain limited support facilities intended specifically to serve the needs of these residents.” Id . Finally, a “retirement village” is defined in the Ordinance as “[a] residential development limited exclusively to persons aged 55 years and older and their spouses.” Id .
Each of these uses contains restrictions which make the use a use other than that specifically defined as an apartment. None of these uses are listed as a category of dwelling. Unlike the category of “single family detached dwelling” found within the larger definition of dwelling, apartments are not further defined with subcategories that apply greater restrictions to the definition; for example, a “townhouse” is defined as one category of “single family detached dwellings” and requires “[o]ne dwelling unit that is attached to 2 or more dwelling units, and with each dwelling unit being completely separated from each other by vertical fire resistant walls. Each dwelling unit shall have its own outside access. Side yards shall be adjacent to each end unit. Townhouses are also commonly referred to as row houses.” Id . Instead of being defined as a type of apartment, like the Ordinance defines townhouses as a type of single family detached dwellings, the terms life care center, personal care center, and retirement village are all separately defined in the Ordinance’s definitions section and delineated throughout the Ordinance where the Ordinance identifies uses permitted in each zoning district. Id .; see also Ordinance § 1002 (providing for uses permitted by right in the PIC District).
Therefore, we reject the Appellees’ argument that the Ordinance’s provision for personal care homes, life care centers, and retirement villages must be considered in evaluating whether the Ordinance provides for apartments. *8 However, KS Development’s argument that the Mixed-Use Overlay does not permit apartments is equally unpersuasive. The Mixed-Use Overlay permits as a use “residential multi family/apartment dwelling on the uppers floors of a three, four or five story mixed use building,” but does not allow residential uses on the ground floor of any building. Ordinance § 1110(D)(1) & (11). Apartments are clearly permitted in the Mixed-Use Overlay by the plain text of the Ordinance. The apartment use is not transformed into a use other than apartments by the requirement that the first floor of a building housing apartments contain a non- residential use; the colocation of uses does not redefine what uses are permitted within a district but regulates the density and configuration of the development of uses within a particular district. Compare Montgomery Crossing Associates , 758 A.2d at 287 (“We have long held that ‘a shopping center constitutes simply a particular configuration of commercial uses, rather than a separate land use category in itself.’ Therefore, although [appellant] seeks to erect a shopping center, its specific challenge is not that there is a ban on shopping centers, but rather on certain types of commercial uses that might conceivably occupy a shopping center.”) (internal citations omitted).
KS Development argues that the facial allowance for apartments in the MDR District and the Mixed-Use Overlay does not negate the argument that the Township’s zoning scheme affects a de jure exclusion of apartments because the use is subject to stringent restrictions, including limited gross density and large set asides, that render the actual development of apartments economically infeasible. This argument, however, conflates a de jure and a challenge to an ordinance.
If an ordinance totally excludes a particular use, such as mobile homes
or billboards, then the ordinance is
de jure
exclusionary; if an ordinance provides
*9
for a particular use but applies additional restrictions on the use that have the effect
of excluding or making provision of the use illusory, than the ordinance is
de facto
exclusionary.
See, e.g. Township of Exeter v. Zoning Hearing Board of Exeter
Township
, 962 A.2d 653, 659 (Pa. 2009) (holding that a 25 square-foot size
limitation on signs permitted in the commercial and industrial zoning districts
constituted a
de facto
exclusion of billboards);
Atiyeh v. Board of Commissioners
of Township of Bethlehem
,
The Ordinance provides for apartments in the MDR and Mixed Use
Overlay Districts. Therefore, the Ordinance is not
de jure
exclusionary.
See, e.g.,
Board of Supervisors of Northampton Township v. Gentsch
,
KS Development contends that the Surrick test does not provide the proper analysis for resolution of the issue before this Court. Instead, KS Development contends that the substantive due process analysis applicable where *10 an ordinance effects a exclusion of a use controls because the issue is not whether the Ordinance provides for its “fair share” of apartments as a class of housing but whether the provision of apartments as a use on the face of the Ordinance is illusory when all the additional limitations imposed by the Ordinance on the apartment use are applied to the areas within the Township zoned for apartment use. We agree, in part.
In
Stahl
, this Court recognized that “[t]heoretically, a municipality
could comply with its fair share responsibility and nevertheless indirectly preclude
development of a type of housing by adopting restrictive dimensional
requirements.”
The abiding concern of
Stahl
is the distinction present not simply
between
de jure
and
de facto
exclusionary challenges to an ordinance but also
between the two types of
de facto
challenges to the constitutionality of an
ordinance.
See Township of Exeter
,
In the instant matter, the Board applied the Surrick analysis and determined that the Township was within the path of growth and highly developed. (Board Op. at 3.) The Trial Court reached the same conclusion, noting that what distinguished the analysis of growth within the Township by KS Development’s expert, Martin Gilchrist, from the analysis of Appellees’ expert, Terry DeGroot, is that KS Development’s expert failed to treat active agricultural uses as developed land. (Trial Court Op. at 8.) Neither the Board nor the Trial Court addressed the third prong of the Surrick analysis—whether the municipality has provided for its “fair share” of land for apartments—because KS Development had failed to satisfy the second prong of the analysis by showing that the Township was underdeveloped.
We agree with the Trial Court that an analysis of the level of
development in a township pursuant to the second prong of
Surrick
, which is
*12
informed by examining the percentage of total undeveloped land and the
percentage of land available for the class of housing alleged to be
unconstitutionally excluded, lacks persuasive value when the analysis treats areas
zoned for agricultural use and actively used for agricultural purposes as
undeveloped. The MPC permits communities to enact ordinances protecting and
promoting agricultural uses of land and identifies the protection and promotion of
agricultural land and uses as one of the purposes of zoning in the Commonwealth.
See
Sections 603 & 604 of the MPC, 52 P.S. §§ 10603, 10604. This Court has
held that land used for active agricultural and agricultural-related purposes is
properly considered to be developed land for purposes of the second prong of the
Surrick
test.
Heritage Building Group, Inc. v. Plumstead Township Board of
Supervisors
,
In support of its legal arguments, KS Development produced a large volume of evidence to demonstrate that the land zoned for development of apartments within the Township was inadequate to support the Township’s fair share of apartments. However, as discussed above, KS Development was unable to show that the Township was underdeveloped, and therefore it was unnecessary for the Board and the Trial Court to examine the evidence in regard to the third prong of the Surrick test. Nevertheless, the evidence produced by KS Development in support of its argument that the Township’s Ordinance worked to *13 exclude its fair share of apartment housing bears upon KS Development’s argument that the Ordinance renders development of apartments economically infeasible through gross density, set asides, and other requirements and is, therefore still exclusionary.
In the MDR District, in addition to lot and setback requirements common to all uses, the Ordinance requires 5 acres as the minimum tract area for use of a property for apartments and that no more than 15% of the tract area be used for apartments. Ordinance § 706(A). The Ordinance also imposes common open space requirements that become increasingly restrictive based on the amount of dwelling units contained in a development:
Common open space shall be suitable for active recreation. Suitable for active recreation shall mean contiguous, and at least 75% of the open space having slopes of less than 10 percent and planted in grass and trees. For each 25 dwelling units, part of this area shall be graded to less than 4 percent slope to form at least 1 rectangular field of at least 300 feet in length and 100 feet in width.
Ordinance § 706(H)(3). KS Development presented testimony demonstrating that together these restrictions render the economics of developing apartment complexes within the Township infeasible. Despite this evidence, the Board found that:
Based upon the presentations of [KS Development, its] witnesses and counsel, [Appellees], their witnesses and counsel, and the testimony of residents and citizens of the [Township], the [Board] finds that the [Township] Ordinance does not prohibit or restrict the use or development of [KS Development’s] subject property.
The [Board] finds that the averments suggesting the Zoning Ordinance is unduly restrictive, confiscatory, unlawfully restricts the development of apartments within the Township, and unlawfully restricts development of a reasonable range of multifamily dwellings in various arrangements within the Township are without merit.
(Board Op. at 2.) The Board’s findings, as affirmed by the Trial Court, have support in both law and fact; although KS Development produced evidence showing that developing apartment complexes in accordance with the Ordinance was economically infeasible, this was not KS Development’s burden. Instead, in order to carry its burden to demonstrate that the Ordinance is unconstitutional because it is de facto exclusionary, KS Development had to demonstrate that the development of apartments was economically infeasible.
Where a
de facto
challenge is brought against an ordinance based
upon economic infeasibility rather than a township’s failure to account for its fair
share of housing, the evidence must account for basic legal principles governing
exclusionary challenges. First, an ordinance may regulate the type and
configuration of a use once it has provided for that use; limitations on the level of
density permitted for the use, standing alone, do not establish that the ordinance is
exclusionary.
Appeal of Girsh
, 263 A.2d at 245;
Gentsch
, 414 A.2d at 460;
Benham v. Board of Supervisors of Middletown Township
,
*16 The evidence presented by KS Development failed to distinguish between the provision of a use and the provision for a host of variations on the configuration of that use, failed to show that any lack of development of the apartment use within the Township was due to the Ordinance rather than the development of other uses where apartments were permitted, and failed to demonstrate that the Ordinance rendered development of apartments within the Township infeasible rather than simply prevented development of apartments in a manner that would provide KS Development with the most profitable use of land. Finally, and most important, KS Development did not demonstrate that the restrictions placed on the development of apartments within the Township’s MDR and Multi-Use Overlay Districts were unreasonable and inconsistent with the stated purpose of those districts. [9] While it is clear from the plain text of the Ordinance that the development of apartments within the Township is highly regulated, the Township’s intensive restrictions on the manner in which apartments are developed was not shown to be unreasonable and unrelated to public health, safety, morals and general welfare. Therefore, we conclude the Trial Court did not err in affirming the Board’s conclusion that KS Development’s challenge to the factors can properly serve in an appropriate municipal or multimunicipal context as a legitimate justification for the imposition of carefully tailored restrictions of the type, design, location, and intensity of permitted development.
Id . at 1032-1033.
[9] See Ordinance § 701 (MDR District) (“Purpose. To provide for a variety of carefully designed housing types at medium densities. To make sure that varied housing types are compatible with any existing single family detached houses. To make sure the street system of the Township and other community facilities and services are fully able to handle moderately dense growth in an area. To work to encourage affordable housing, especially for young families and senior citizens. To encourage these areas to be developed for townhouses and apartments only after both public water and sewer service is available.”); Ordinance § 1110 (Mixed-Use Overlay District Purpose); see also Ordinance § 101 (Purposes and Objectives of Ordinance). *17 Ordinance as unduly restrictive of the development of various arrangements of multi-family dwellings was without merit.
Accordingly, we hold that the Ordinance is not de jure or de facto exclusionary because the Township has provided for its fair share of apartment housing and has not used other restrictions within the Ordinance to render the development of apartments an illusory or economically infeasible prospect. Our holding is based on the evidence presented in support of KS Development’s request for a curative amendment to construct apartments within the OP District, rather than the Ordinance as applied to a property within the area zoned for apartment use, and on the evidence of the growth and development of the Township as currently reflected in the record.
__________ ___________________________ JAMES GARDNER COLINS, Senior Judge Judge Covey did not participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA KS Development Company, L.P. and :
KS Development Company 2, L.P. :
:
v. : No. 2302 C.D. 2015
:
Lower Nazareth Township and :
AAA of Northampton County and :
Robert and Beverly Hoyer and :
Woodmont Properties, LLC :
:
Appeal of: Woodmont Properties, LLC :
KS Development Company, L.P. and :
KS Development Company 2, L.P., :
Appellants :
:
v. : No. 2312 C.D. 2015
:
Lower Nazareth Township and :
AAA of Northampton, :
Robert and Beverly Hoyer, :
Wind-Drift Real Estate Associates, :
Woodmont Properties
O R D E R
AND NOW this 26 th day of October, 2016, the October 23, 2015 order of the Court of Common Pleas of Northampton County in the above- captioned consolidated matters is AFFIRMED.
__________ ___________________________ JAMES GARDNER COLINS, Senior Judge
Notes
[1]
See
Sections 916.1, 909.1, and 609.1 of the Municipalities Planning Code (MPC), Act of July
31, 1968, P.L. 805,
as amended
, added by Act of December 21, 1988, P.L. 1329, 53 P.S. §§
10916.1, 10909.1, 10609.1 (providing procedures by which an aggrieved landowner may bring a
challenge to the validity of an ordinance and seek a curative amendment before a township’s
governing body);
see also H.R. Miller, Co. Inc. v. Board of Supervisors
,
[2] Woodmont is an Intervenor-Appellant in this matter. AAA of Northampton County, Robert and Beverly Hoyer and Wind-Drift Real Estate Associates are Intervenor-Appellees. For simplicity, this opinion will refer to all arguments in favor of reversing the Trial Court’s order and granting a curative amendment as arguments made by KS Development and all arguments in support of affirming the Trial Court’s order as arguments made by the Appellees.
[3] A zoning ordinance limiting a landowner’s absolute right to use private property is a valid
exercise of a township’s police power when it promotes the public health, safety or welfare, and
its provisions are substantially related to the purpose the ordinance purports to serve.
Cleaver v.
Board of Adjustment of Tredyffrin Township
, 200 A.2d 408, 411- 412 (Pa. 1964). A party
challenging the constitutionality of a zoning ordinance bears the burden to demonstrate that the
ordinance is infirm and must establish that it is arbitrary, unreasonable and unrelated to public
health, safety, morals and general welfare; in determining whether the challenged ordinance is a
valid exercise of the police power, the reasonableness of the restriction must be weighed against
its confiscatory or exclusionary impact.
C & M Developers, Inc. v. Bedminster Township Zoning
Hearing Board
,
[4] The Court held in
Surrick
, when the issue under review is whether a zoning ordinance utilizes
exclusionary or unduly restrictive regulations to exclude a class of housing, the analysis falls
within the broader confines of a substantive due process analysis pursuant to the Fifth and
Fourteenth Amendments to the United States Constitution and in keeping with Article 1, Section
1 of the Pennsylvania Constitution.
Surrick
,
[5] The Statutory Construction Act, 1 Pa. C.S. §§ 1501-1991, is equally applicable to the interpretation of local ordinances and, of particular note in the instant matter, mandate that every ordinance “shall be construed, if possible, to give effect to all its provisions,” that “when words of the [ordinance] are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit,” and that specific provisions control over more general ones. 1 Pa. C.S. §§ 1921(a) & (b), 1933.
[6] The definition of “dwelling” specifically excludes a “nursing home.” Ordinance § 202.
[7] The exception of course being, as held in
Stahl
, where land within a township was zoned to
include the use only after the saturation of other uses rendered development of the newly zoned
use infeasible.
[8]
See also In re Petition of Dolington Land Group
,