Kaiserman v. Springfield Tp.

• Decision Date: 18 February 1976
• Citation: 348 A.2d 467,22 Pa.Cmwlth. 287
• Parties: Kevy W. KAISERMAN and George W. NEFF, Appellants, v. SPRINGFIELD TOWNSHIP, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 467

348 A.2d 467

22 Pa.Cmwlth. 287

Kevy W. KAISERMAN and George W. NEFF, Appellants, v. SPRINGFIELD TOWNSHIP, Appellee.

Commonwealth Court of Pennsylvania.

Argued Oct. 8, 1975.

Decided Dec. 10, 1975.

Petition for Allowance of Appeal Denied Feb. 18, 1976.

Milton S. Lazaroff, Philadelphia, for appellants.

Thomas M. Garrity, Norristown, for appellee.

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

MENCER, Judge.

This is a zoning appeal from the Court of Common Pleas of Montgomery County which dismissed an appeal from the decision of the Board of Commissioners of Springfield Township (Board). That decision upheld the constitutionality of the Springfield Township Zoning Ordinance of 1940 (Ordinance) and denied the request of Kevy W. Kaiserman and George W. Neff (appellants) for a curative amendment.

We are faced, in this case, with a challenge to a zoning ordinance on the ground that it is unconstitutional because it results in a de facto exclusion of apartments. Appellants rely on Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), and Township of Willistown v. Chesterdale Farms, Inc., --- Pa. ---, 341 A.2d 466 (1975). Girsh, of course, prohibited a township from totally excluding multifamily dwellings by zoning ordinance, while Willistown found that an ordinance setting aside a 'token' amount of land for multifamily dwellings is equally unconstitutional.

The appellants in this case ask us to extend these decisions and to conclude, as a matter of law, that a zoning ordinance by virtue of which 10.4% Of a township's land is zoned for multifamily dwellings becomes exclusionary In its effects when the land previously zoned for apartments has become largely developed with single-family homes. This development, they assert, has left only a 'token' amount of the township developed with multifamily dwellings.

Briefly, the case reaches us in the following manner. On March 7, 1973, appellants filed a petition with the Board, claiming, pursuant to Section 1004(1)(b) of the Pennsylvania Municipalities Planning Code (MPC), ¹ that the Ordinance was unconstitutional and invalid. At the same time they submitted a curative amendment under Section 609.1 of the MPC, 53 P.S. § 10609.1. The Board properly fixed a date for hearing, gave notice, and conducted hearings on May 3 and 17, 1973; June 6, 14, and 27, 1973; and July 10, 1973.

The Board's decision, delayed with the agreement of both parties, was delivered on September 24, 1973. In that decision the Board upheld the validity of the Ordinance against the challenge and hence did not adopt the curative amendment. A zoning appeal notice was filed with the Court of Common Pleas of Montgomery County on October 15, 1973. The lower court dismissed the appeal in a decision dated February 7, 1975. Neither the Board nor the Court of Common Pleas made specific findings of fact. ² However, we are able to find, in our reading of the lower court's opinion, statements which approximate findings of fact and which we in this instance deem to be sufficient for our review.

A zoning ordinance is presumed valid and constitutional; therefore, one challenging the ordinance has the heavy burden of proving otherwise. Ellick v. Board of Supervisors of Worcester Township, 17 Pa.Cmwlth. 404, 333 A.2d 239 (1975). This is especially so when the ordinance is being challenged because it has an alleged exclusionary effect even though it may not be exclusionary on its face.

'When, however, a challenger alleges that there is de facto exclusionary zoning, he carries the heavy burden of showing that, even though on its face an ordinance permits a specific use, the ordinance as applied effectively prohibits such use.' Hodge v. Zoning Hearing Board of West Bradford Township, 11 Pa.Cmwlth. 311, 320, 312 A.2d 813, 818 (1973).

Appellants have failed to sustain this burden. We therefore affirm.

Our scope of review, in cases where the lower court has taken no additional evidence and has relied on the evidence presented to the governing body, is limited to a determination of whether the lower court abused its discretion or committed an error of law. Ellick, supra. Appellants contend that under the facts in this record the lower court erred in deciding that the Ordinance was not de facto exclusionary. At the outset, we wish to note that the question of whether a zoning ordinance is exclusionary in Its effect, because it fails to provide for a 'fair share' of land for multifamily dwellings, always depends on the unique facts in each case and thus can only be decided on a case-by-case basis. Willistown Township v. Chesterdale Farms, Inc., 7 Pa.Cmwlth. 453, 300 A.2d 107 (1973) (opinion in support of affirmance by Mencer, J.). We must therefore review the facts in this case.

Appellants are the legal owners of 47.59 acres of land in what is known as the Stotesbury Tract, a former estate located in the Wyndmoor section of Springfield Township. The land is undeveloped, except for a dilapidated mansion and a formal garden now overgrown. It is one of the few remaining large, undeveloped tracts in the township. At this time the land is zoned party 'A Residential' and partly 'AA Residential'. Both zones permit only single-family detached dwellings to be built on lots of 12,500 and 25,000 square feet, respectively.

The township itself covers an area of 3,942 acres immediately northwest of the City of Philadelphia, with which it shares a common boundary. Since 1940, pursuant to the zoning ordinance in question here, the township has had 408 acres of land zoned to allow multifamily dwellings by special exception. Roughly 304 of these acres are zoned 'C' or 'D Residential', and 104 acres are zoned either 'Business 1' or 'Business 2'. Although subsequent amendments have increased the number of square feet per family required for multiple-family dwellings in 'D Residential', 'Business 1', and 'Business 2' districts, the number of acres theoretically available for multifamily dwellings remains the same. It is uncontested that there is no appreciable amount of vacant land remaining to be developed in any of the four districts zoned for multifamily dwellings. The record, however, does not reveal the specific number of acres which remain undeveloped, if any.

Appellants contend that the practical effect of the zoning ordinance, coupled with the pattern of development in the township, is that only six-tenths of one percent of the land in the township is actually committed to multifamily dwellings. They therefore urge us to find that the Ordinance excludes all but a 'token' amount of multifamily development. Appellants rely on the holdings in Girsh, supra, and Willistown Township v. Chesterdale Farms, Inc., --- Pa. ---, 341 A.2d 466 (1975). In each of those cases, however, the complete exclusion and 'token' allowance of multifamily dwellings, respectively, was accomplished by the zoning ordinance Alone. It was therefore deemed sufficient to show either a total exclusion of apartment dwellings or that the percentage of land set aside for those dwellings was unreasonably small in relation to the need in the township. Appellants here have at no time contended that the acreage provided for apartment dwellings was, at the time the Ordinance was passed, a 'token' amount. More importantly, they make no claim that the 408 acres provided for multifamily dwellings Has become less than a 'fair share' by virtue of the...