Kelly v. Zoning Hearing Board of Upper Moreland Township

487 A.2d 1043, 87 Pa. Commw. 534, 1985 Pa. Commw. LEXIS 835
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 14, 1985
DocketAppeal, No. 1555 C.D. 1982
StatusPublished
Cited by6 cases

This text of 487 A.2d 1043 (Kelly v. Zoning Hearing Board of Upper Moreland Township) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. Zoning Hearing Board of Upper Moreland Township, 487 A.2d 1043, 87 Pa. Commw. 534, 1985 Pa. Commw. LEXIS 835 (Pa. Ct. App. 1985).

Opinion

Opinion by

Judge Rogers,

Thomas Kelly and Helen Kelly, his wife, have appealed an order of the Court of Common Pleas of Montgomery County affirming a decision of the Zoning Hearing Board of Upper Moreland Township (board) which rejected their challenges to the validity [536]*536of the township zoning ordinance and their application for a variance.

Appellants’ property is located in a residential zoning district where only single family residences on three acre lots are permitted uses. The appellants’ lot on which their residence is located contains six acres. They purchased the property in 1945 by deed containing a restrictive covenant providing that the lot might not be subdivided so as to produce any lot containing less than three acres. This restriction was imposed upon all lots in the development called Oak Ridge Farm. When the restriction expired in 1960, the owners of lots in Oak Ridge Farm successfully petitioned the Board of Commissioners of Upper Moreland Township to adopt the three acre minimum lot size as a zoning regulation affecting their properties. The appellants were not petitioners but they knew of the action of other property owners and made no objection to it.

In 1981, the appellants formed a desire to subdivide their six acre lot into three parcels, each containing about two acres. They applied to the board for a variance and they challenged the validity of the three acre minimum lot size requirement. After three evenings of hearings, the board denied the variance. The appellants appealed to the court of common pleas which, without receiving additional evidence, affirmed the board.

On appeal before this court, ‘ ‘ our scope of review is limited to determining whether the finder of fact . . . [here the board], abused its discretion or committed an error of law.” DeCaro v. Washington Township, Berks County, 21 Pa. Commonwealth Ct. 252, 256, 344 A.2d 725, 727 (1975).

The appellants make three arguments: first, that the three acre minimum lot size requirement is un[537]*537constitutional as having an exclusionary purpose and effect; second, that it is unconstitutional as an unreasonable exercise of police power; and third, that they had established their entitlement to a variance.

We agree with the trial court that the appellants failed to produce evidence overcoming the presumption favoring the validity of the contested ordinance or which would justify the grant of a variance.

Exclusionary Zoning

With respect to the alleged exclusionary purpose and effect of the three acre requirement, we have, pursuing the analysis set forth in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977), duly considered whether the municipality has accepted its “ ‘fair share’ of the legitimate developmental needs of the larger community of which the municipality is a part.” Hostetter v. Township of North Londonderry, 63 Pa. Commonwealth Ct. 122, 437 A.2d 806 (1981). The threshold inquiry under Surrich is that of whether the municipality is in the pathway of development and population growth. Surrick, 476 Pa. at 192, 382 A.2d at 110. This involves an examination of the “ [population density data and the percentage of total undeveloped land and the percentage available for the development of multi-family dwellings. ...” Id. Additionally, the reviewing court must consider whether the “challenged zoning scheme effected an exclusionary result or, alternatively, whether there was evidence of a ‘primary purpose’ or exclusionary intent to zone out the natural growth of population.” Id.

Upper Moreland Township is about fifteen miles north of center city Philadelphia. After three extensive hearings conducted by the board, the appellants failed to establish that although the township is near [538]*538Philadelphia, it is in the logical path of development of the neighboring metropolis.

Moreover, as the trial court noted, the appellants failed to prove that present zoning will not satisfy the needs of the township’s natural population growth. A review of the township’s development in the last decade shows that the population increased by 4.1% while the number of dwellings in the township increased by 32.7%.

Additionally, there was no proof offered by the appellants that.the township has failed to accommodate its “fair share” of the natural growth of population. The R-Residential zoning district comprises only three percent of the township’s population; the remainder of the zoning districts offer a diverse range of dwellings and uses, so that no segment of the population is excluded from the township. The trial court judge noted that “62% of the township is zoned for residential development on lots ranging from 1.1 units per acre to 25 dwelling units per acre.”1 . ' The appellants, however, contend that the ordinance .is exclusionary in its purpose because it was enacted only after the Oak Ridge Farm property owners petitioned the township for a three acre restriction on their development. In Robert Louis Corp. v. Board of Adjustment of Radnor Township, 1 Pa. Commonwealth Ct. 292, 297, 274 A.2d 551, 555 (1971), we rejected the same argument. We there wrote: “ The fact that the rezoning was initiated by residents of the zoned area is not determinative of the validity of the ordinance.” Mr. Ernest Yan Rieker, a professional planner who testified on the appellants’ behalf, ■ stated that it is valid planning practice to update zoning ordinances based on legitimate, existing uses. The township’s planning director, Mr. Richard [539]*539Bickel, testified that the ordinance satisfied the long-range objectives of the Upper Moreland Comprehensive Plan in encouraging growth and development around certain core areas and in discouraging development in such low density areas as Oak Ridge Farm.

The appellants further contend that the R-Residential zoning district ordinance is exclusionary in effect, because it has an adverse influence on the marketability of the appellants’ property. National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 524 n. 23, 215 A.2d 597, 608 n. 23 (1965). The appellants’ six acre parcel may be subdivided into two lots; their proofs do not include a showing that the resulting two three acre lots would not be marketable.

We agree with the trial court that the board correctly concluded that neither exclusionary intent nor effect was shown.

Police Power Regulation

The appellants’ thesis is that the three acre minimum is unduly restrictive, confiscatory, and was therefore an invalid exercise of police power. They say that neither the board nor the court decided this issue. If this were true, we would be required under B-K Properties Appeal, 498 Pa. 370, 446 A.2d 891

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ethan-Michael, Inc. v. Board of Supervisors of Union Township
918 A.2d 203 (Commonwealth Court of Pennsylvania, 2007)
Carman v. Zoning Board of Adjustment
638 A.2d 365 (Commonwealth Court of Pennsylvania, 1994)
Berman v. Board of Commissioners
608 A.2d 585 (Commonwealth Court of Pennsylvania, 1992)
Downtown Neighborhoods Ass'n v. City of Albuquerque
783 P.2d 962 (New Mexico Court of Appeals, 1989)
In re Appeal of Marple Gardens, Inc.
514 A.2d 216 (Commonwealth Court of Pennsylvania, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
487 A.2d 1043, 87 Pa. Commw. 534, 1985 Pa. Commw. LEXIS 835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-zoning-hearing-board-of-upper-moreland-township-pacommwct-1985.