Sullivan v. Board of Supervisors

348 A.2d 464, 22 Pa. Commw. 318, 1975 Pa. Commw. LEXIS 1327
CourtCommonwealth Court of Pennsylvania
DecidedDecember 11, 1975
DocketAppeal, No. 135 C.D. 1975
StatusPublished
Cited by14 cases

This text of 348 A.2d 464 (Sullivan v. Board of Supervisors) 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
Sullivan v. Board of Supervisors, 348 A.2d 464, 22 Pa. Commw. 318, 1975 Pa. Commw. LEXIS 1327 (Pa. Ct. App. 1975).

Opinion

Opinion by

Judge Kramer,

This is an appeal by Daniel Sullivan and Robert Flowers from an order of the Court of Common Pleas of Bucks County, dated January 9, 1975. The order dismissed their appeal from the denial by the Supervisors of Lower Make-field Township of a substantive challenge to the Township's zoning ordinance. The only real issue raised by appellants is whether the ordinance in question provides only a “token” amount of land for commercial development and thus has an impermissible exclusionary effect. We conclude that the ordinance is a proper exercise of the police power and affirm the lower court.

Appellants own 45.21 acres on which they propose to build and operate an extensive nursery and garden supply [320]*320business. The land is zoned R-l, “Residential-Low Density,” and, apparently,1 no commercial activity is permitted in R-l districts.

The Township consists of 17.62 square miles (over 11,200 acres), of which 47 acres are zoned C-l, “Commercial-Neighborhood Shopping.” These 47 acres are contained in one centrally located commercial district, and a minimum lot size of ten acres is required for commercial development.

In addition to the single C-l district, the Township has two C-2 “Commercial-Highway Services” districts, covering an additional 68 acres, with a minimum lot size of two acres required for commercial development.2 The total area of the Township’s commercial zones is thus 115 acres, or about one percent of the total area of the municipality.

The single C-l district is located at the intersection of several of the Township’s principal roadways, near the geographic center of the municipality. The testimony of the Township’s only witness, a planning expert, confirms the obvious conclusion that the Township wants commercial development to occur in an integrated fashion in one centrally-located area. The C-2 districts are designed to accommodate commercial interests which cater to transients, who are traveling through the Township along arterial highways.

Our scope of review when the lower court has not taken additional evidence is to determine whether the Board of Supervisors committed an error of law or an abuse of discretion. Toiunskip of Upper Moreland v. Gaunt, 16 Pa. Commonwealth Ct. 334, 328 A.2d 556 (1975).

[321]*321Before discussing the only issue, there is one preliminary matter which merits comment. Throughout their brief, appellants raise questions concerning the wisdom of this municipality’s overall zoning plan. Indeed, it is difficult to discern, from reading the testimony alone, that there was any legal challenge to the constitutionality of the ordinance. The curative amendment submitted by appellants along with their substantive challenge under Sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code3 was, of course, properly before the Board of Supervisors. Once that amendment was denied, however, the sole issue remaining involved the legal merit of appellants’ allegation of exclusionary zoning. No litigant is entitled to legislative action under the MPC, as we have recently held. Ellick v. Board of Supervisors of Worcester Toivnship, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975).

Turning to appellants’ main contention, we are urged to place the burden of proving the validity of the ordinance upon the municipality, in accordance with Beaver Gasoline Company v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971). We decline to do so. Beaver involved a total ban on a particular type of land use and is thus distinguishable from the instant case, where there has been provision made for at least some commercial development in three different portions of the municipality. The presumption of validity which attaches to zoning ordinances is so well-established that courts have disturbed it only in the most exceptional circumstances, and for only the most compelling reasons. See Beaver, supra; National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965) , and DeCaro v. Washington Township, 21 Pa. Commonwealth Ct. 252, 344 A.2d 725 (1975). Al[322]*322though Lower Makefield Township has not been generous in its allocation of land for commercial development, we are not convinced that the instant case can be characterized as one of total prohibition.

To carry its burden of proving the invalidity of the ordinance, appellants rely principally upon Judge Mencer’s opinion in support of affirmance in Willistown Township v. Chesterdale Farms, Inc., 7 Pa. Commonwealth Ct. 453, 300 A.2d 107 (1973), which was recently affirmed by the Supreme Court. Pa. , 341 A.2d 466 (1975). Appellants assert that their proof shows that, despite the provisions for C-l and C-2 districts, the Township is guilty of a de facto exclusion of all commercial development and, consequently, has not allowed for its “fair share” of necessary development under Willis-town. Specifically, appellants emphasize (1) the fact that the land presently zoned C-l is owned by many individuals in parcels of less than the ten acres required for development; and (2) the fact that, even considering the area encompassed by all three of the commercial districts, only a relatively small percentage of the Township’s area is set aside for commercial use.

We see nothing in this record which indicates that it would be unreasonable to expect a determined developer to be able to successfully assemble at least a ten-acre parcel in the C-l district. Appellants argue that because 19 of the 47 acres zoned C-l are occupied by a private school, a church, a firehouse, a meeting hall and six farmhouses, development in conformity with the ten-acre requirement is “not reasonably available by any standard for commercial development.” Reserving the question of whether the total area zoned for commercial development is too small, we see no merit in appellants’ point other than a recognition that a potential developer will have to negotiate with at least two existing owners to assemble a usable tract in the C-l zone. The statistics presented by appellants do not warrant a conclusion that even most [323]*323of the C-l land cannot be acquired through a reasonable amount of effort by a determined developer. Except for the most remote portions of our state, there is probably very little land which is not useful to someone for some purpose, and it is not the obligation of municipalities to assure that land within a given district is readily available for sale. Groff Appeal, 1 Pa. Commonwealth Ct. 439, 274 A.2d 574 (1971).

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Bluebook (online)
348 A.2d 464, 22 Pa. Commw. 318, 1975 Pa. Commw. LEXIS 1327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-board-of-supervisors-pacommwct-1975.