Township of Willistown v. Chesterdale Farms, Inc.

341 A.2d 466, 462 Pa. 445

• Court: Supreme Court of Pennsylvania
• Decided: July 18, 1975
• Docket: 438 and 439
• Status: Published

Opinions

OPINION OF THE COURT

O’BRIEN, Justice.

In May of 1969, Chesterdale Farms, Inc. (Chester-dale), proposed to erect apartments on a tract of land located in Willistown Township (the township). This proposal was rejected because the tract was zoned RA-1, Residential, which did not permit apartments. Some six months later, Chesterdale again submitted a plan for approval, but it, too, was refused. Chesterdale then applied for a building permit, which was refused. Shortly after that refusal, this court decided Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), in which we held zoning that totally excluded apartments to be unconstitutional. Subsequent to our decision in Girsch, supra, Chesterdale again applied for a building permit and, in addition, filed an action in mandamus, alleging that the township’s zoning ordinance was unconstitutional in light of Girsh, and further alleging that it was entitled to a building permit as a matter of right.¹ The township thereupon passed a new zoning ordinance which provided an area of eighty acres in the township on which apartments could be built. Chesterdale’s land was not in that area.

Chesterdale’s application for the building permit was first refused because the new ordinance was pending. Chesterdale then appealed to the zoning hearing board and, after the new ordinance was passed, Chesterdale’s request for a permit was denied by the zoning board. Chesterdale appealed to the Court of Common Pleas of Chester County, which upheld the board’s decision refusing the permit, but declared the new zoning ordinance to be unconstitutional. Both Chesterdale and the township then appealed to the Commonwealth Court, which, being equally divided, affirmed the decision of the Court of Common Pleas. Both parties then sought allocatur, Chesterdale seeking to have its permit issued and the township alleging that its new ordinance was constitutional. We'granted allocatur because of the importance of the issues involved.

No. 439 January Term, 1973-Appeal of Township of Willistown

Appellant (Willistown Township, argues that the August 25, 1970, amendment of its zoning ordinance, which provided for an eighty acre site for apartment-type dwellings, met this court's mandate in Girsh, supra, and therefore, • the zoning ordinance is constitutional. Appellee, Chesterdale, contends that the rezoning of only 80 acres out of 11,589 acres in the township constitutes “tokenism,” and is an exclusionary land use restriction not meeting the Girsh standard. We agree with appellee, Chesterdale.

In Girsh, supra, this court, in declaring unconstitutional a total exclusion of apartments from a zoning ordinance, except for a variance procedure, stated:

“. . . To be constitutionally sustained, appellee’s land-use restriction must be reasonable. If the failure to make allowance in the Township’s zoning plan for apartment uses is unreasonable, that restriction does not become any the more reasonable because once in a while, a developer may be able to show the hardship necessary to sustain a petition for a variance. . . At page 240, 263 A.2d at page 397.

The rationale supporting our Girsh decision is taken from Nat. Land & I. Co. v. Easttown Twp. Bd. of A., 419 Pa. 504, 532, 215 A.2d 597, 612 (1965), wherein we stated:

“ • • .A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration of public services and facilities can not be held valid.” (Emphasis supplied.)

Moreover, the prevention of “newcomers” is not limited to total exclusion, but also selective admission. This court, in Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970), discussed the responsibilities of municipalities on the fringe of an urban area in dealing with expansive population pressures, and stated:

“The implication of our decision in National Land [419 Pa. 504, 215 A.2d 597 (1965)] is that communities must deal with the problems of population growth. They may not refuse to confront the future by adopting zoning regulations that effectively restrict population to near present levels. . . . It is not for any given township to say who may or may not live within its confines, while disregarding the interests of the entire area.” At page 474, 268 A.2d at pages 768-769.

The New Jersey Supreme Court, in Southern Burlington County NAACP v. Twp. of Mount Laurel, 67 N.J. 151, 336 A.2d 713 (1975), in discussing a zoning ordinance which provided for a total exclusion of apartment dwellings, stated:

“We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and its regulations must affirmatively afford that opportunity, at least to the extent of the municipality’s fan share of the present and prospective regional need therefor. These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do.” (Page 724 of 336 A.2d.) (Emphasis supplied.)

Our review of this record convinces us that the township zoning ordinance which provides for apartment construction in only 80 acres out of a total of 11,589 acres in the township continues to be “exclusionary” in that it does not provide for a fair share of the township acreage for apartment construction.

Nor are we convinced by Willistown’s argument that Chesterdale’s development plans would overburden its municipal services. Suburban municipalities within the area of urban outpour must meet the problems of population expansion into its borders by increasing municipal services, and not by the practice of exclusionary zoning. See National Land, supra, and Concord Twp., Appeal, supra.

Having found the township’s zoning ordinance unconstitutional, we direct that zoning approval for appellee’s tract of land be granted and that a building permit be issued given appellee’s compliance with the administrative requirements of the zoning ordinance and other reasonable controls, including building, subdivision and sewage regulations, which are consistent with this opinion. See Casey v. Zoning Hearing Board of Warwick Twp., 459 Pa. 219, 328 A.2d 464 (1974). The trial court shall retain jurisdiction to oversee the granting of the necessary permits authorized by this opinion.

Order of the Court of Common Pleas affirmed in part and modified in part. Case remanded to the Willistown Township Zoning Hearing Board for proceedings consistent with this opinion.² Appellant in Appeal No. 439 January Term, 1973 to bear costs.

JONES, C. J., did not participate in the consideration or decision of this case. ROBERTS, J., filed a concurring opinion. MANDERINO, J., concurs in the result. POMEROY, J., filed a dissenting opinion.

1 . The action in mandamus is still pending.

2 . Given our decision in Appeal of Willistown Township, No. 439 ■ January Term, 1973, we need not reach the issue as to whether the variance was or was not properly denied in Appeal of Chesterdale, No. 438 January Term, 1973 is dismissed.