Boss v. Zoning Hearing Board

517 A.2d 1371, 93 Pa. Commw. 374, 1985 Pa. Commw. LEXIS 1492

• Court: Commonwealth Court of Pennsylvania
• Decided: December 9, 1985
• Docket: Appeal, No. 1576 C.D. 1983
• Status: Published

Opinion

Opinion by

Senior Judge Kalish,

Appellants are the .owners of a dwelling located in an R-3 district on Highland Road, in an area zoned for one-family dwellings. T.ownhouses are not permitted in the R-3 district bnt áre permitted in the R-T Townhouse Dwelling district.

Appellants. contested the validity of the Zoning Ordinance and also requested a rezoning of their property from R-3, which restricts the use of Highland Avenue on which the property was.located, to R-T, which would permit the construction of Townhouses. The Zoning Board upheld the validity of the ordinance and denied appellants’ request.

After -appeal to the Common Pleas Court, the only new evidence were answers of the Borough to inter,rogatories propounded by appellants. The trial court found for the appellees, but sincé -no findings were made it was remanded by this court for such findings. Boss v. Zoning Hearing Board of Bethel Park, 66 Pa. Commonwealth Ct. 89, 443 A.2d 871 (19.82). The trial court, based on its original opinion, again found for the appellees.

." While the trial court made no specific findings •as'such, findings may be gleaned from its opinion.

- ■' Appellants challenge the validity of the Zoning Ordinance in that it does not provide for sufficient Townhouse usage in the Borough and that the classification of its property as R-3 was arbitrary and discriminatory.

The appellees contend that the ordinance is not exclusionary since the ordinance provides for specific and substantial zoning districts designated for Townhouse' development.

• We affirm the trial court.

The basis for all zoning regulations is'the exercise of the police power. Where the ordinance bears no substantial relationship to' the health or general welfare of the community there may be a deprivation of property rights without due process of law; Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977). It is in this light 'that restrictive zoning' techniques should he examined. Surrick; Martin v. Township of Millcreek, 50 Pa. Commonwealth Ct. 249, 413 A.2d 764 (1980).

(Since the ordinance involves a partial, rather than a total exclusion¹ of Townhouses, a challenge to the validity of the ordinance must overcome the presumption of constitutional validity. The objector must bring forth evidence to show an unreasonable relationship between the restriction and the health and welfare of the community since it is presumed that the Borough’s legislative body acted in the public interest. Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971); Bilbar Construction Co. v. Easttown Township Board of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958); Martin; see also, Anstine v. Zoning Board of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963). The objector failed to produce such evidence.

The court found that .the Borough is a logical area for development and population growth, being located less than ten miles from Pittsburgh with ready 'access to vital transportation links within the City of Pittsburgh. The court found that 20% of the land remained undeveloped, thus not precluding further development ; that 3.2% of this .undeveloped land is available for development of multi-family uses and that the ordinance provides, in addition, for 2.1% of the undeveloped land or 271 'acres for townhouse development.

The trial court found and we affirm that the ordinance does not unduly restrict Townhouse development or multi-family uses.

Nor have, the appellants shown that the Borough discriminated against them in its present zoning.

Order

The order of the Court of Common Pleas of Allegheny County in No. S.A. 136 of 1977, dated June 1, 1983, is affirmed.

1 In Daikeler v. Zoning Board of Adjustment of Montgomery Township, 1 Pa. Commonwealth Ct. 445, 275 A.2d 696 (1971), this court indicated that in a total exclusion case, the ordinance does not enjoy the presumption of constitutional validity, in which case the burden shifts to the Borough to bring forth evidence to show that total exclusion bears a reasonable relationship to the health and welfare of the community.