Opinion
Argued October 8, 1985
December 9, 1985.
Zoning — Validity ordinance — Townhouses — Partial exclusion — Burden of proof.
1. In its exercise of its police power in the enactment of zoning regulations, a municipality may unconstitutionally deprive a citizen of property rights without due process of law if such regulations bear no substantial relationship to the health or general welfare of the community. [376]
2. A party challenging the validity of a zoning ordinance because of a partial, rather than a total exclusion of townhouses, has a heavy burden in overcoming the presumption of constitutionality and must establish that there is no reasonable relationship between the restriction and the health and welfare of the community. [377]
Argued October 8, 1985, before President Judge CRUMLISH, JR. and Judge COLINS, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 1576 C.D. 1983, from the Order of the Court of Common Pleas of Allegheny County in case of Robert C. Boss and Marcella M. Boss, his wife v. Zoning Hearing Board of the Borough of Bethel Park, No. SA 136 of 1977.
Application with the Zoning Hearing Board of Bethel Park for rezoning and challenging the validity of zoning ordinance. Application denied. Applicants appealed to the Court of Common Pleas of Allegheny County. Appeal dismissed. PAPADAKOS, A. J. Applicants appealed to the Commonwealth Court of Pennsylvania. Reversed and remanded. ( 66 Pa. Commw. 89) Appeal again dismissed. PAPADAKOS, A. J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Nathaniel B. Smith, with him, John Daley, Brennan, Robins Daley, for appellants.
Victor R. Delle Donne, with him, Joel P. Aaronson, Baskin and Sears, P. C., for intervening appellee, Municipality of Bethel Park.
Appellants are the owners of a dwelling located in an R-3 district on Highland Road, in an area zoned for one-family dwellings. Townhouses are not permitted in the R-3 district but are permitted in the R-T Townhouse Dwelling district.
Appellants contested the validity of the Zoning Ordinance and also requested a rezoning of their property from R-3, which restricts the use of Highland Avenue on which the property was located, to R-T, which would permit the construction of Townhouses. The Zoning Board upheld the validity of the ordinance and denied appellants' request.
After appeal to the Common Pleas Court, the only new evidence were answers of the Borough to interrogatories propounded by appellants. The trial court found for the appellees, but since no findings were made it was remanded by this court for such findings. Boss v. Zoning Hearing Board of Bethel Park, 66 Pa. Commw. 89, 443 A.2d 871 (1982). The trial court, based on its original opinion, again found for the appellees.
While the trial court made no specific findings as such, findings may be gleaned from its opinion.
Appellants challenge the validity of the Zoning Ordinance in that it does not provide for sufficient Townhouse usage in the Borough and that the classification of its property as R-3 was arbitrary and discriminatory.
The appellees contend that the ordinance is not exclusionary since the ordinance provides for specific and substantial zoning districts designated for Townhouse development.
We affirm the trial court.
The basis for all zoning regulations is the exercise of the police power. Where the ordinance bears no substantial relationship to the health or general welfare of the community there may be a deprivation of property rights without due process of law. Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977). It is in this light that restrictive zoning techniques should be examined. Surrick; Martin v. Township of Millcreek, 50 Pa. Commw. 249, 413 A.2d 764 (1980).
Since the ordinance involves a partial, rather than a total exclusion of Townhouses, a challenge to the validity of the ordinance must overcome the presumption of constitutional validity. The objector must bring forth evidence to show an unreasonable relationship between the restriction and the health and welfare of the community since it is presumed that the Borough's legislative body acted in the public interest. Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971); Bilbar Construction Co. v. Easttown Township Board of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958); Martin; see also, Anstine v. Zoning Board of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963). The objector failed to produce such evidence.
In Daikeler v. Zoning Board of Adjustment of Montgomery Township, 1 Pa. Commw. 445, 275 A.2d 696 (1971), this court indicated that in a total exclusion case, the ordinance does not enjoy the presumption of constitutional validity, in which case the burden shifts to the Borough to bring forth evidence to show that total exclusion bears a reasonable relationship to the health and welfare of the community.
The court found that the Borough is a logical area for development and population growth, being located less than ten miles from Pittsburgh with ready access to vital transportation links within the City of Pittsburgh. The court found that 20% of the land remained undeveloped, thus not precluding further development; that 3.2% of this undeveloped land is available for development of multi-family uses and that the ordinance provides, in addition, for 2.1% of the undeveloped land or 271 acres for townhouse development.
The trial court found and we affirm that the ordinance does not unduly restrict Townhouse development or multi-family uses.
Nor have the appellants shown that the Borough discriminated against them in its present zoning.
ORDER
The order of the Court of Common Pleas of Allegheny County in No. S.A. 136 of 1977, dated June 1, 1983, is affirmed.