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Keywords

contractappealzoningappellant
contractpleazoningappellantappellee

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Appeal of Girsh, 437 Pa. 237, 263 A.2d 395, 1 ERC 1140

Facts

Appellant contracted to purchase a 17.5-acre tract of land in Nether Providence Township, which was zoned R-1 Residential. The appellant sought to change the zoning classification to allow for the construction of high-rise apartments but was denied by the Township Board. The zoning ordinance permitted only single-family dwellings, and while apartments were not explicitly prohibited, they were not provided for in the ordinance. The appellant appealed the denial of a building permit and challenged the constitutionality of the zoning ordinance.

By agreement dated July 13, 1964, appellant contracted to purchase a 17 1/2 acre tract of land, presently zoned R-1 Residential, in Nether Providence Township, Delaware County.

Issue

Is the zoning ordinance of Nether Providence Township unconstitutional for failing to provide for apartment uses?

Appellant attacks the constitutionality of the zoning ordinance in question on two levels. First, he maintains that it is unconstitutional for the Township to prohibit the construction of apartment buildings throughout the entire township.

Rule

A zoning ordinance that totally prohibits a legitimate use throughout an entire municipality must bear a substantial relationship to the public health, safety, morals, or general welfare.

The test of constitutionality of a zoning ordinance is whether it bears a substantial relation to the health, safety, morals or general welfare of the public.

Analysis

The court analyzed the zoning ordinance and determined that the lack of provision for apartments was unreasonable and effectively functioned as a total prohibition. The court emphasized that the possibility of obtaining a variance did not justify the absence of apartment zoning, as variances are difficult to obtain and do not address the broader issue of community needs for housing. The court referenced previous cases that struck down similar total prohibitions on legitimate uses.

In light of this standard, appellee's land-use restriction in the case before us cannot be upheld against constitutional attack because of the Possibility that an Occasional property owner may carry the heavy burden of proving sufficient hardship to receive a variance.

Conclusion

The Supreme Court reversed the lower court's decree, holding that the zoning ordinance's failure to provide for apartments was unconstitutional.

The order of the Court of Common Pleas of Delaware County is reversed.

Who won?

Appellant prevailed in the case because the court found the zoning ordinance unconstitutional for not allowing apartment development, which was deemed necessary for accommodating population growth.

Appellant prevailed in the case because the court found that the failure to make allowance in the Township's zoning plan for apartment uses is unreasonable.

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