Ellick v. Board of Sup'rs of Worcester Tp.

• Decision Date: 11 February 1975
• Citation: 333 A.2d 239,17 Pa.Cmwlth. 404
• Parties: Marvin D. ELLICK, Appellant, v. BOARD OF SUPERVISORS OF WORCESTER TOWNSHIP, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 239

333 A.2d 239

17 Pa.Cmwlth. 404

Marvin D. ELLICK, Appellant, v. BOARD OF SUPERVISORS OF WORCESTER TOWNSHIP, Appellee.

Commonwealth Court of Pennsylvania.

Argued Oct. 9, 1974.

Decided Feb. 11, 1975.

Arsen Kashkashian, Jr., Philadelphia, for appellant.

Bean, DeAngelis, Kaufman & Kane, J. Peirce Anderson, Norristown, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

KRAMER, Judge.

This is an appeal filed by Marvin D. Ellick (Ellick) from an order of the Court of Common Pleas of Montgomery County, dated January 30, 1974. The order dismissed Ellick's appeal and, in effect, affirmed the rejection by the Worcester Township Board of Supervisors (Board) of Ellick's 'Challenge to the Validity of the Zoning Ordinance of Worcester Township and Request For Curative Amendment' (hereinafter 'challenge').

Ellick is the owner of a 40-acre tract of land located in Worcester Township (Township). Ellick's land is currently zoned 'AGR-agricultural', which limits nonagricultural uses to lots of 60,000 square feet. Elick desires to build 280 townhouses on his property. On April 14, 1973, Ellick filed his challenge with the Board pursuant to section 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(1)(b). ¹ The challenge, among other things, alleges that '(t)own houses for sale are excluded from every portion of the Township of Worcester.' Another allegation of the challenge is that there is a need for moderately priced dwellings which can be best provided by cluster-type townshouses such as those proposed by Ellick. The challenge includes a request for a curative amendment which would amend the Township's zoning ordinance so as to permit the construction of Ellick's proposed townhouses.

A hearing on Ellick's challenge was held before the Board on July 30, 1973. There was an unavoidable delay in transcribing the notes of testimony, and the parties agreed that the Board would have 30 days from the receipt of the transcript to make its adjudication. The Board received the transcript on September 20, 1973, but failed to act within the 30-day period prescribed by section 1004(4)(iii) of the MPC, 53 P.S. § 11004(4)(iii), and, therefore, the challenge was deemed to have been denied. Ellick filed a timely appeal to the court below on October 23, 1973. The lower court neither took additional testimony nor received additional evidence, and on January 30, 1974, it dismissed Ellick's appeal. Following Ellick's appeal to this Court, the lower court on April 1, 1974, filed an opinion in support of its January 30, 1974 order. The court decided that the ordinance does not totally prohibit townhouses because they could be built as 'apartment houses' in R--150 Residential districts.

In his appeal to this Court, Ellick argues that the Township zoning ordinance is invalid because it unconstitutionally prohibits townshouses anywhere in the Township. See Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970). He contends that since he presented proof that the ordinance prohibits townhouses the burden was on the Board to prove that the prohibition is for a legitimate public purpose and bears a relationship to the public health, safety, morals and general welfare. See Beaver Gasoline Company v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971). He also argues that the present zoning restrictions applicable to his property are unreasonable and confiscatory. By contrast, the Township argues that its ordinance does not prohibit townhouses because they are a permitted use as 'apartment houses' in R--150 Residential districts. The Township argues that its ordinance regulates the use rather than the ownership of property, and that under the ordinance Ellick could build townhouses in an R--150 Residential district and sell them as condominums or in fee simple.

The instant case is the first time ² this Court has dealt with a challenge to the validity of a zoning ordinance pursuant to section 1004(1)(b) of the MPC, as amended in 1972, 53 P.S. § 11004(1)(b). The present section 1004 ³ was added to the MPC by the 1972 amendments which effected considerable change, both procedurally and substantively, in the MPC. Because the 1972 amendments are somewhat complex, and we notice an increasing number of appeals related thereto, we believe it will be helpful to all concerned to set forth some guidelines to aid in the disposition of the type of case now facing us.

Initially we believe it important to note that the general principles of law relating to challenges to zoning ordinances have not changed. A zoning ordinance is still presumed valid and constitutional, and anyone challenging an ordinance has a heavy burden of proving otherwise. See Surrick v. Zoning Hearing Board of the Township of Upper Providence, 11 Pa.Cmwlth. 607, 314 A.2d 565 (1974); Hodge v. Zoning Hearing Board of West Bradford Township, 11 Pa.Cmwlth. 311, 312 A.2d 813 (1973). When an individual challenging a zoning ordinance proves a total prohibition of an otherwise lawful use, the burden shifts to the municipality to prove that such prohibition bears a relationship to the public health, safety, morals and general welfare. See Beaver Gasoline Company, supra; Amerada Hess Corporation v. Zoning Board of Adjustment, 11 Pa.Cmwlth. 115, 313 A.2d 787 (1973). The law concerning variances and special exceptions has not changed.

Prior to the 1972 amendments, a landowner could challenge the validity of a zoning ordinance either at the time of its passage or later by filing an application for a zoning permit, and the variances and special exceptions incidental thereto.

Section 1004(1) of the MPC, 53 P.S. § 11004(1) now provides two additional methods for a landowner to challenge a zoning ordinance. He may submit his challenge to the zoning hearing board, or he may submit it to the governing body together with a request for a curative amendment under section 609.1 of the MPC, 53 P.S. § 10609.1. Section 1004(2)(c) of the MPC, 53 P.S. § 11004(2) (c) provides that a challenge to a zoning ordinance by either method 'shall be accompanied by Plans and other materials describing the use of development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map.' (Emphasis added.) The 'plans and other materials' submitted need not meet the more stringent standards necessary to obtain a building permit, so long as they provide reasonable notice to the governing body of the proposed use or development. Section 1004(2)(c) of the MPC, 53 P.S. § 11004(2)(c).

In the instant case, Ellick chose to submit his challenge to the governing body. Section 1004, 53 P.S. § 11004, directs the governing body to hold a hearing to consider the challenge and request for a curative amendment. If the governing body determines that its ordinance is defective, it may amend the ordinance by accepting the proposed curative amendment, or a variation thereof. While recognizing the potential problems which may thus arise, we do not decide in this case what happens if the governing body adopts a curative amendment different from the oen which was proposed by the landowner. We are quite certain, however, that the 1972 amendments to the MPC do not in any way interfere with the governing body's power to amend its zoning ordinance in a manner which the governing body believes will best further legally the public interest. To reiterate, if it finds that its ordinance is defective, the governing body may choose to cure the defect by an amendment other than that proposed by the challenging landowner. However, we must caution governing bodies that they cannot adopt or pass a curative amendment which would frustrate the challenging landowner, as was attempted in the Girsh case, Supra. See the recent opinion of our Supreme Court in Casey v. Zoning Hearing Board of Warwick Township, --- Pa. ---, 328 A.2d 464 (1974).

It is clear, under the 1972 amendments, that if a governing body determines that its ordinance is defective, because it totally prohibits the use proposed by the challenging landowner, then the governing body must permit the challenging landowner, to develop his land as proposed in the 'plans and other materials' submitted with the challenge, provided, of course, that what is submitted is reasonable, and not injurious to the public health, safety, welfare and morals. The governing body may not totally prohibit the successful challenger's proposed development nor may it subject the proposed development to unreasonable and burdensome restrictions. See Casey, supra. The governing body may, however, subject the landowner's submitted plans to reasonable restrictions as may be otherwise properly provided for in its ordinance. To put it another way, the successful challenger will still be required to abide by all of the reasonable building requirements, density restrictions, safety measures, sewage regulations, and water requirements, as well as all other reasonable zoning, building subdivision and other regulations generally applicable to the class of use or construction proposed by the landowner. By class of usage here, we mean those classes which are usually found in zoning ordinances such as residential, agricultural, commercial, and industrial.

Section 1004(3) of the MPC, 53 P.S. § 11004(3) provides that if a governing body denies a landowner's challenge and request for curative amendment, or fails to act within 30 days of the last hearing, then the landowner may appeal to the court of common pleas. The 1972 amendments to the MPC do not require the governing body to render a written decision in this type of case; and this of course, may make the task of the courts more difficult on appeal. In any event, section 1010 of the MPC, 53 P.S. § 11010, provides that a court of common pleas, within its discretion may require the presentation...