Opinion
No. 2196 C.D. 2010
01-04-2012
In Re: Appeal of KMRD, L.P. from decision of the Zoning Hearing Board of Forks Township Appeal of: KMRD, L.P.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE KEITH B. QUIGLEY, Senior Judge
This case was decided before Judge Butler's term ended on January 2, 2012.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
KMRD, L.P. (KMRD) appeals from the order of the Court of Common Pleas of Northampton County (common pleas court) which dismissed KMRD's challenge to the constitutionality of the Forks Township 2006 Zoning Ordinance which designated land within Forks Township as conserved and preserved agricultural land.
KMRD is the legal equitable owner of eight tracts of land in the "FP - Farmland Protection Zoning District" which together comprise 545 acres. KMRD sought to build high-density housing on land in the "FP - Farmland Protection Zoning District" but was denied. Specifically, KMRD sought to build 1,952 condominium apartments, 359 townhomes, 731 mobile homes, for a total of 3,042 housing units. KMRD now challenges the constitutionality of the Township's zoning scheme.
In 2000, Forks Township enacted a Zoning Ordinance. In the "FP - Farmland Protection Zoning District" the following residential uses were permitted by right: single family detached dwelling and performance subdivision, with a required mix of single family detached, attached dwellings and apartments.
In 2006, the Township revised its Zoning Ordinance. The Township changed the name of "FP Farmland Protection Zoning District" to "FP - Farmland Preservation Zoning District." The performance subdivision zoning district was deleted as a permitted use and replaced with single family dwelling and single family detached cluster. The boundaries were not altered. The purpose of the FP District was set forth as follows:
A cluster development is one in which the housing units are closely grouped, with open spaces between groups of dwellings.
Traditionally, farming practices and residential uses have been incompatible because of conflict with traffic, noise and odor. The FP District is intended to conserve agricultural land within the Township, discouraging residential consumption of prime agricultural land. Given the housing projection until at least the year 2010, the area within the FP District is not needed to meet the projected housing needs of the Township. Further, this district will remain with little development incentives since it is not intended to be served by public sewers. In addition, the FP District is intended to encourage and enhance the preservation of the cultural landscape within the Township and to act as a primary open space link within the residential and employment centers in the community.Forks Township 2006 Zoning Ordinance, Article III, §200-12 at 3-2; Reproduced Record (R.R.) at 1985a-1.
In 2007, KMRD filed a substantive challenge to the 2006 Zoning Ordinance pursuant to Section 909.1 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10919.1, and asserted: (1) the regulations governing the use of land in the FP District bear no rational relationship to the purposes of the FP District as set forth in the 2006 Zoning Ordinance; (2) the 2006 Zoning Ordinance is de facto exclusionary with respect to multifamily housing; (3) the regulations governing apartments and townhomes are unduly restrictive and render the ability to develop multifamily housing illusory; (4) the 2006 Zoning Ordinance failed to provide an opportunity for the development of a reasonable range of multifamily dwellings in various arrangements as mandated by Section 604(4) of the MPC, 53 P.S. §10604(4).
Act of July 31, 1968, P.L. 805, as amended.
Twenty-four hearings were held from August 2006, through October 2008. On December 4, 2008, the Forks Township Zoning Hearing Board (ZHB) voted unanimously to deny the substantive challenge. The ZHB issued a decision which contained extensive findings of fact and conclusions of law. The ZHB found the testimony of the Township's witnesses with regard to the substantive challenge to the FP District to be more credible and persuasive than the witnesses produced on the part of KMRD. The ZHB found that "the provisions of the FP District have accomplished the goal of conserving agricultural land within the Township and will continue to achieve that goal." ZHB Decision, December 4, 2008, Findings of Fact, 24, at 7.
With regard to KMRD's contention that the 2006 Zoning Ordinance was "exclusionary" because it failed to make reasonable provisions for mobile home parks, multi-family uses, apartments and townhomes, the ZHB found that KMRD's challenge was not supported by the facts. The ZHB applied the principles enunciated in Surrick v. Zoning Hearing Board of the Township of Upper Providence, 476 Pa. 182, 382 A.2d 105 (1977). Specifically, the ZHB found that KMRD did not sufficiently take into account the relative facts involving the rapid growth and development of the Township in recent years, the choices by developers for residential construction driven by market forces, preferences of developers to meet market demands and the historic development of multiple family housing in the Township. In that regard, the ZHB concluded that the area of the Township which was susceptible to development and growth had already experienced that development and growth. And the FP District was also "developed" because it was designated for farmland protection and was utilized for farming and agricultural purposes.
The ZHB's decision was affirmed by the common pleas court.
On appeal, KMRD raises five issues: (1) whether the 2006 Zoning Ordinance is invalid and unconstitutional because the provisions governing development in the FP District are unconstitutionally arbitrary, capricious, unreasonable and unduly restrictive; (2) whether the 2006 Zoning Ordinance is de facto exclusionary with respect to multi-family housing; (3) whether the 2006 Zoning Ordinance is invalid and unconstitutional because the provisions governing development of multifamily units, including apartments and townhouses are unduly burdensome and unreasonably restrictive; (4) whether the 2006 Zoning Ordinance is unconstitutional because it fails to include provisions that provide an opportunity for the development of a reasonable range of multifamily dwellings in various arrangements as mandated by Section 604(4) of the MPC, 53 P.S. §10604(4); and (5) whether KMRD is entitled to definitive relief if this Court concludes that the ZHB and the common pleas court erred as a matter of law in denying KMRD's substantive challenge to the 2006 Zoning Ordinance?
When the common pleas court takes no additional evidence, this Court's scope of review is limited to whether the ZHB committed an error of law or manifestly abused its discretion. Nascone v. Ross Township Zoning Hearing Board, 473 A.2d 1141 (Pa. Cmwlth. 1984). An abuse of discretion occurs when the ZHB's findings are not supported by substantial evidence. City of Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh, 522 Pa. 44, 559 A.2d 896 (1989).
I.
Is the Ordinance Unconstitutionally Arbitrary ,
Capricious , Unreasonable and Unduly Restrictive?
A zoning ordinance is presumed to be valid so the burden falls on the challenging party to establish that the provisions in question are arbitrary and unreasonable and bear no substantial relationship to promoting public health, safety and welfare. Keinath v. Township of Edgmont, 964 A.2d 458 (Pa. Cmwth. 2009). A municipality has the right to reasonably limit an owner's absolute right to use his or her property with zoning ordinance designed to protect or preserve public health, safety and welfare. Cleaver v. Board of Adjustment of Tredyffrin Township, 414 Pa. 367, 200 A.2d 408 (1964). See also Section 603 of the MPC, 53 P.S. §10603.
However, the regulations and requirements of a municipal zoning ordinance must not be unreasonably restrictive and must bear a rational relationship to a legitimate governmental purpose. National Land and Investment Co. v. Board of Adjustment of Easttown Township, 419 Pa. 504, 215 A.2d 597 (1966). A significant factor in determining the reasonableness of land use restrictions in a zoning ordinance is whether they are consistent with stated purposes of the particular zoning district. Keinath.
A desire to preserve agricultural lands and protect agricultural soils may be a legitimate reason for the imposition of carefully tailored restrictions of the type, design, location and intensity of permitted development. In re Petition of Dolington Land Group, 576 Pa. 519, 839 A.2d 1021 (2003); Ethan-Michael, Inc. v. Board of Supervisors of Union Tp., 918 A.2d 203 (Pa. Cmwlth. 2007); Crystal Forest Associates, LP v. Buckingham Township Supervisors, 872 A.2d 206 (Pa. Cmwlth. 2005), appeal denied, 586 Pa. 760, 895 A.2d 551 (2006).
Here, the following residential uses were permitted in the FP District: (1) for single-family home, a minimum three-acre lot, with no permanent open space preservation; (2) for higher density single-family cluster, a minimum one-acre lot, with fifty percent of the total land area to be permanently preserved.
In addition to agricultural uses, the FP Districts permitted the following uses by right: forestry, greenhouse, farm support facility, riding academy/boarding stable, cemetery, golf course, municipal facility, and light home occupation. District Regulations, Forks Township 2006 Zoning Ordinance, Article IV, §200-13 at 4-1-4-2; R.R. at 1987a-1988a.
The stated purposes of the FP District were to (1) conserve agricultural land within the Township; (2) discourage residential consumption of prime agricultural land; (3) encourage and enhance the preservation of the cultural landscape within the Township; (4) act as a primary open space link within the residential and employment centers in the community. Forks Township 2006 Zoning Ordinance, Article III, §200-12 at 3-2; R.R. at 1985a.
The record establishes that the land in the FP District was historically and currently used primarily for agricultural purposes. In its 1997 Comprehensive Plan the Township emphasized that preservation of its agricultural lands and activities was an important goal of the Township. 1997 Forks Township Comprehensive Plan, ¶B.7; R.R. at 1886a.
KMRD argues that the regulations governing the use of land in the FP District bear no relationship to the stated purposes in the 2006 Zoning Ordinance or to any legitimate zoning purpose. KMRD argues that the regulations and requirements of the 2006 Zoning Ordinance were not narrowly tailored to effectuate the goal of conserving agricultural land. Specifically, KMRD argues that if the FP District regulations were narrowly tailored to effectuate the goal of conserving agricultural land, the minimum lot size for single-family detached dwellings would not have been increased from two acres (in 2000) to three acres (in 2006), "with no requirement for open-space or for conservation of agricultural land." KMRD's Brief at 13. (emphasis in original). Further, if the 2006 Zoning Ordinance was narrowly tailored to conserve agricultural land, ten "non- agricultural" uses would not have been permitted in that district with no open space dedicated to agricultural use set aside, whatsoever.
KMRD argues that the Zoning Ordinance governing natural resource protection did not identify prime agricultural soils as a protected natural resource. KMRD argues that the real objective of the FP District in the 2006 Zoning Ordinance was the Township's desire to limit the number of dwelling units that could be constructed; not to conserve agricultural soils or land. Because the restrictions bore no substantial relationship to promoting public health, safety and welfare, it was an invalid zoning purpose and unconstitutional as a matter of law.
This Court has reviewed the extensive record and must agree with the common pleas court that KMRD failed to present sufficient facts to support its contention that regulations governing the use of agricultural land in the FP District were arbitrary, capricious, unreasonable or unconstitutional.
The ZHB credited the testimony of the Township's expert, Charles Schmehl (Schmehl), Vice President of Urban Research and Development in Bethlehem, Pennsylvania. The ZHB found that as a former employee of the Lehigh Valley Planning Commission and a drafter of the 2006 Zoning Ordinance, Schmehl had extensive knowledge of Forks Township and its developmental history, and was far more knowledgeable than any other witness who testified. Schmehl testified at length that the FP District contained farmland appropriate for farmland preservation and that the area in question was, and had always been, utilized for farming. Schmehl explained the Township's FP District zoning scheme involved a process of "incentives and disincentives" which had the effect of preserving 50% of prime agricultural soils and open space. Specifically, Schmehl explained that to protect agricultural land a municipality has two choices. One is the use of "restrictive back zoning" that greatly limits the number of houses allowed on a tract of land such as one house for every 20-25 acres. Hearing Transcript, March 31, 2008, (H.T. 3/31/08), at 24-25; R.R.at 1104a-1105a. The second option was to use a "system of incentives and disincentives." H.T., 3/31/08 at 25; R.R. at 1105a.
Schmehl testified that the Township did not use the restrictive agricultural zoning scheme because it would negatively impact property values. To limit one house to 25 acres would not only decrease the market value of the property, it would decrease the value for purposes of a County agricultural easement. H.T., 3/31/08, at 31-32; R.R. at 1111a-1112a.
Instead, the Township used a process of "incentives and disincentives" to preserve land in the FP District and provide compatible land uses across municipal borders. Schmehl explained how the two residential options encourage the use of the cluster option, which then preserves a significant amount (50%) of open space, which, in the FP District, preserves prime agricultural lands and soils:
The township supervisors and planning commission decided to use a process of incentives and disincentives to help preserve land in the FP District and to provide compatible land uses across municipal borders. What the 2006 Ordinance says is that if a property owner wishes to develop land in the FP and they do not wish to provide permanent open space preservation, they are required to provide 3 acre minimum lots for each single family home, that is the alternative that is discouraged. The preferred alternative, and the one that is intended to achieve a higher density and, therefore, a stronger incentive to the applicant is the cluster option. The
cluster residential option allowed the lot size to go down from 3 acres to 1 acre, and then requires 50 percent of the total land area to be permanently preserved.H.T. 3/31/08, at 38; R.R. at 1118a (emphasis added).
Schmehl explained the net effect of the cluster option with regard to the prime agricultural soils:
Because that vast majority of the FP District is prime agricultural soils, if you have 50 percent of the tract being preserved, the effect is to, in most cases, to preserve 50 percent of the prime agricultural soils, because almost all of the land is prime agricultural, 50 percent of the total. The effect is you preserve 50 percent of the prime agricultural soils.H.T. 3/31/08, at 44; R.R. at 1124a.
Schmehl also explained why "agricultural soils" was not listed as a natural resource in the Ordinance:
We didn't feel we needed to use it, because 95 percent of the FP District is class 1, 2, and 3 soils. If you preserve 50 percent of it, you have preserved 50 percent of the class 1, 2, and 3 soils. It became self-executing without having to require that level of analysis.Hearing Transcript, June 16, 2008, (H.T. 6/18/08) at 51; R.R. at 1324a.
Schmehl explained that the Township would retain control as to the location of the open space. Open space was to be placed in a location that was suitable for agricultural, plant nursery, tree farm, equestrian use, public recreation use or connecting with other open space or with active farmland to serve as a buffer. H.T., 3/31/08, at 45-48; R.R. at 1125a-1128a. In other words, there was an open space requirement which, by definition, preserved prime agricultural land. The layout of the open space was controlled by the Township. Further, a minimum of 75% of the required open space was to be in one or two contiguous lots. He explained that the open space requirement would not allow developer to merely create pockets of open space at the developer's whim. Rather, the Township retained control of the layout of open space to preserve the highest quality agricultural soils.
Schmehl testified that the "cluster option" provided opportunities to place wide open space areas to buffer homes from adjacent zoning districts that allow industrial uses in the EC-2 District, as well as various existing industrial uses. Even if the open space was not used for agricultural purposes, it would provide compatibility with existing agricultural purposes by establishing a buffer. H.T., 3/31/08 at 48, 53-55; R.R. at 1128a, 1133-1135a. Further the FP District was designed to be compatible with the adjacent municipalities of Plainfield Township and Lower Mount Bethel Township which are zoned primarily to allow agricultural uses at their boundaries with Forks Township.
The ZHB credited Schmehl's explanations and justifications for the manner in which the Township preserved agricultural soils in the FP District. The one and three-acre minimum lot sizes, with provisions for open space, were not arbitrary or capricious. According to the explanations provided by Schmehl, this method provided an incentive for developers to utilize the higher-density cluster option, and in turn reserve the majority of the lot to open space, while at the same time maintaining property values. Because the ZHB's findings are supported by substantial evidence, this Court agrees with the common pleas court that KMRD failed to meet its heavy burden to demonstrate that the regulations governing the FP District did not serve to preserve the Township's interest in preserving agricultural lands.
KMRD also contends that the intent of the 2006 Zoning Ordinance was not to preserve or protect the farmland and agricultural soils because the FP District allows ten " non-agricultural " uses. This argument fails, as well. As explained by Schmehl, the FP District allowed certain uses which, although were not agricultural in nature, they were consistent with, and did not conflict with agricultural uses. For example, accessory agricultural sales, forestry, greenhouses, farm-support facilities, and riding academies did not conflict with agricultural uses and did not "consume" or destroy agricultural soils.
Accordingly, this Court concludes that the overall zoning scheme in the FP District was reasonable and had the effect of preserving prime agricultural soils. The minimum lot sizes when viewed with the incentive/disincentive process were appropriate and valid. The restrictions set forth in the FP District were consistent with the stated purpose of the FP District.
II.
Is the Ordinance De Facto Exclusionary
With Respect to Multi-Family Homes and Mobile Home Parks?
In its next issue, KMRD contends that the agricultural preservation zoning regulations, as applied to its property, are de facto exclusionary and unconstitutional. KMRD contends that in enacting the 2006 Zoning Ordinance, the Township failed to provide the opportunity for the development of its "fair share" of multi-family housing units and mobile home parks to accommodate the needs of those individuals who wish to reside in Forks Township. KMRD argues that the obvious intent of the 2006 Zoning Ordinance was to "dramatically slow population growth and development within the Township." KMRD's Brief at 18.
A zoning ordinance which has the effect of totally excluding moderate and low income persons by means of excluding certain types of multifamily dwellings is exclusionary, inherently discriminatory, and, therefore, unconstitutional. Kratz v. Skippack Tp., 339 A.2d 595 (Pa. Cmwlth. 1975). Where a partial exclusion of multifamily dwellings is in issue, the court must determine whether the zoning community is accepting its "fair share." Surrick. Under a "fair share" analysis, the percentage of land zoned for the proposed use is relevant and must be considered in relation to the total undeveloped land in the community. Id. Only where the amount of land zoned for the proposed used is disproportionally small in relation to the total area of undeveloped land, the ordinance will be deemed exclusionary. Id.
In Surrick, the Pennsylvania Supreme Court set forth a three-part test for analyzing challenges to ordinances which effect only a partial exclusion of the required basic forms of housing. First, is to determine whether the community is in the "path of growth" and in a logical place for growth and development. When it is demonstrated that a community is in the path of growth, the second step in the Surrick analysis is to determine the level of development in the area. If the result of the first prong is the determination that the community is "situated in the path of population expansion and is not already highly developed," then a "fair share" analysis is required. Surrick, 476 Pa. at 192, 382 A.2d at 110.
First Prong of Surrick - Path of Growth
As to the first prong of the Surrick test, the following factors are considered in determining whether a community is in "the path of growth" and in a logical area for population growth and development: (1) projected population growth; (2) anticipated economic development; (3) access by major roads or public transportation; (4) the growth and development of neighboring municipalities; (5) proximity to a large metropolitan area; and (6) attempts by developers to obtain permission to build. Heritage Building Group, Inc. v. Bedminster Township Board of Supervisors, 742 A.2d 708 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 667, 659 A.2d 389 (2000) (Heritage I).
KMRD does not challenge the ZHB's conclusions with regard to any of these factors. Rather, KMRD argues that the ZHB misconstrued the "path of growth" prong of the Surrick analysis because it erroneously focused on whether the FP District was "in the path of growth." KMRD contends that for purposes of the Surrick analysis, the relevant inquiry is whether Forks Township , not just the FP District, was in the path of growth. It claims that the municipality cannot be divided into sections for purposes of this inquiry.
KMRD relies on Heritage Building Group v. Plumstead Township Board of Supervisors, 833 A.2d 1205 (Pa. Cmwlth. 2003) (Heritage II), for this proposition. Specifically, KMRD argues:
In Heritage [II], the Bucks County Court of Common Pleas and this Court rejected a finding of the zoning hearing board that 'although the middle of the [Plumstead] Township was in the path of growth, the eastern and western sections of the Township, where the [subject] tracts are located, remained primarily agricultural and was not in the path of growth. And held that the relevant inquiry was whether the entirety of Plumstead Township was in the path of growth. Heritage [II], 833 A.2d at 1207.KMRD's Brief at 20-21 (emphasis added).
KMRD does not accurately represent the holding in Heritage II.
In Heritage II, Heritage Building Group (Heritage) owned property in the rural residential district in the eastern and western portions of Plumstead Township. Multi-family housing units were not permitted in these rural residential districts which remained primarily agricultural. Heritage filed a substantive challenge and alleged that Plumstead Township failed to provide its "fair share" of land in zoning classifications that permitted multi-family housing such as apartments and townhouses. It also proposed a curative amendment to re-zone the rural residential districts to allow for multi-family housing.
The zoning board found that, although the middle portion of Plumstead Township was in the path of growth, Heritage's tracts, which were located in the eastern and western portions of Plumstead Township, which remained primarily agricultural, were not in the logical path of growth. The zoning hearing board went on to conclude for purposes of the second prong of the Surrick analysis that land used for agricultural purposes was already "highly developed." Heritage II, 833 A.2d at 1207. The zoning board denied Heritage's validity challenge and rejected its proposed curative amendment.
On appeal, Heritage argued, inter alia, that the zoning hearing board erred when it divided Plumstead Township into three separate sections and found that only the central section of the township was in the path of growth. The common pleas court agreed; not because of the reasons KMRD put forward, but because the zoning hearing board had just recently, in a previous 1998 case, found that the entire township was in the "logical path of growth path of growth and development and that such should be the case for some time to come ." Heritage II, 833 A.2d at 1208 (emphasis added). The common pleas court reversed the zoning hearing board because the zoning hearing board contradicted itself , not because a zoning board is required to consider, in every situation, whether the entire municipality is in the "path of growth." The issue was not pursued further on appeal to this Court. In any event, this Court has approved the carving out of a single property for purposes of a Surrick "path of growth" analysis. In McGonigle v. Lower Heidelberg Township Zoning Hearing Board, 858 A.2d 663 (Pa. Cmwlth. 2004), this Court was asked to determine whether property designated as "agricultural preservation area" located within a Township was outside the area of growth in Lower Heidelberg Township. This Court upheld the hearing board's finding that the landowner's property was not in a logical area for growth and development and was not in the path of growth. In affirming the decision of the zoning hearing board, which found the landowner's property to be outside the area of growth, this Court stated:
That case was Heritage Bldg. Group, Inc. v. Plumstead Tp. Zoning Hearing Board, 71 Bucks County L. Rep 587 (1998). --------
As the Board found, the Property is surrounded by agricultural, residential and recreational uses. It is undisputed that the Property has been used for a nursery and crop farming since 1966 and can also be used for any other agricultural uses, and display, sale and processing of farm products....The Joint Comprehensive Plan and the Berks Vision 2020 Plan designate the area of the Property as an agricultural preservation area, not a future growth area. Commercial development is recommended along the Route 422 corridor about two miles from the Property and in the villages of the Township.McGonigle, 858 A.2d at 671.
The approach in McGonigle makes sense. Under KMRD's approach, "a municipality is either in the path of growth or not in the path of growth. It cannot be halfway in and halfway out." KMRD's Brief at 21. This is neither useful nor realistic because municipalities are made up of communities, unique in topography, accessibility to major highways and transportation, proximity to metropolitan areas and municipal or state borders. Invariably some areas are in the path of growth while others are not because they may be topographically not conducive to development. Thus, it would not be accurate or helpful to state simply that a municipality is either in the path of growth or not, when in reality certain areas may be while others are not. The McGonigle approach recognizes that individual areas in a municipality may not be uniform and may have different characteristics.
Here, the ZHB again credited the testimony of Schmehl who testified that a substantial portion of Forks Township has been in a "path of growth" in recent years. He testified that the FP District was not in the "path of growth" but was a "distinct area" from other parts of the Township which had experienced growth. The FP District was not accessible from the major road systems and it was far from the highway interchanges. The FP District did not have public water or sewer services.
The ZHB concluded, based on the credible testimony of Schmehl, that the FP District, was not in a path of growth and development, even though it was, according to KMRD, "unpopulated." As Schmehl explained that the FP District was a " distinct area from other parts of the Township " because the land owned by KMRD in the FP District has historically been, and continued to be, used primarily for farming. Schmehl explained that the access roads from major road systems to the FP District were narrow, backlogged, windy, and highly congested with quarry trucks. H.T. 3/31/08 at 78; R.R. at 1158a. He believed that the extra commuter time greatly discouraged people from wanting to live in that area versus other parts of Forks Township. H.T. 3/31/08 at 78; R.R. at 1158a. Schmehl also explained that there was limited residential growth in the land areas contained in the FP District even though ordinances prior to the 2006 Zoning Ordinance allowed for residential building densities at a higher rate than the 2006 Zoning Ordinance . Thus, even though developers could have, they chose not to develop there. The ZHB concluded that the Township had experienced a path of growth, and that path of growth had ended at the FP District because of its distinctive agricultural features and location within the Township.
This Court must agree with the common pleas court that KMRD failed to establish the first prong of the test.
Second Prong of Surrick - Highly Developed
Assuming arguendo that KMRD had met the first prong, this Court agrees with the common pleas court that KMRD failed to meet its burden of showing that the present level of development could accommodate more multi-family housing within the Township.
With respect to the land located in the FP District, Schmehl testified that Forks Township was "highly developed" and expressed his opinion, based on Pennsylvania case law, that land which is being actively used for agricultural purposes is considered to be "developed."
Tim Weis (Weis), the Township's Code Enforcement Officer, testified about the number of townhouses that had been approved and constructed. Weis' testimony established that the Township accommodated a tremendous amount of new townhouses and attached construction in recent years. The Township provided credible evidence as to the numbers of attached housing in the Township for the years 2002-2007 which showed that the percentage of attached housing compared to all other residential housing ranged from 31% to 43%. Further, the evidence proved that the total number of new housing units from 2002-2005 was 1,633. Of those new housing units, 589 were attached housing or 36%. Further, From 2000 to 2006, there was a 56% population growth in the Township, from 8,676 residents to 13,551. H.T., 3/31/08, at 73; R.R. at 1153a. For municipalities exceeding 2,000 residents, Forks Township was the third fastest growing municipality in Pennsylvania. Thus, taking into consideration that the FP District was already "developed," the record established that 95% of the Township was developed and less than 5% was "developable."
Based on this evidence, the ZHB found:
Clearly, areas of Forks Township are highly developed, and minimal land remains in those areas for future development. Certainly, a significant portion of Forks Township is already highly developed. The remaining land which would be utilized for future residential development, including the land owned by KMRD, is in the FP zoning district....Since Forks Township has already designated this area for preservation, and through the Forks Township Zoning Ordinance of 2006, and the predecessor ordinance, has sought to protect that area, it is not truly and actually available for residential development.ZHB Decision, December 4, 2008, Findings of Fact, 103, at 40.
KMRD contends that the ZHB erred because the agricultural and "vacant" land in the FP District is appropriate and available for development. However, contrary to KMRD's argument, the Heritage II case specifically established that land set aside for farming is "developed." Identical to the argument raised by KMRD, Heritage had argued that land used for agricultural purposes must be considered "undeveloped" for purposes of the Surrick analysis. The argument was soundly rejected. The Heritage II court agreed with the local zoning board that the term "developed" for purposes of a Surrick analysis should include active agricultural uses such as crop farming, general farming, farm support, nursery and horticultural uses. As the Heritage II court noted, nothing in Surrick suggested that land developed for agricultural purposes could not be considered "highly developed" for purposes of determining how much land was available in a community for the construction of housing.
The ZHB neither erred nor abused its discretion in determining that land in Forks Township currently used for agricultural or agricultural-related purposes was considered "developed" for purposes of the second prong of the Surrick analysis.
Third Prong of Surrick - Fair Share
Assuming arguendo that KMRD had met the first and second prongs, this Court agrees with the ZHB and common pleas court as to the final part of the Surrick test, that KMRD did not carry its heavy burden of proving that the Township did not provide for its "fair share" of mobile home parks and apartments.
The ZHB found that Forks Township had met its "fair share" of providing housing of various types. The evidence, including Weis' testimony recited above, established that Forks Township provided ample opportunities for different types of attached housing, including apartments. Further, Schmehl prepared a summary of housing types that were allowed in the Township when the 2000 Zoning Ordinance was in effect:
...[o]f the 8 main districts, all of those main residential options districts allow for some type of attached housing or mobile home parks. For example, the CR District included most of the land in the township that had been developable land and had public sewer service that allowed up to 4 units to the acre. The districts, EC1 and EC2, allowed mobile home parks. The FP District, at the time of the 2001 effective date of this ordinance, allowed twin houses, and up to 2.7 housing units per acre. The open space district allowed twin houses, the suburban residential district allowed various housing types at up to 5.6 units per acre, and the Town Center District allowed the majority of a piece of land to be developed for various housing types, including apartments and townhouses, at up to 10 housing units per acre.Hearing Transcript, May 14, 2008, (H.T., 5/14/08) at 34-35; R.R. at 1220a-1221a.
Schmehl testified that the mobile home park need was being met by the Township and that there were previously approved 133 new mobile homes in a mobile home park development. At the hearing on May 14, 2008, Schmehl described in detail the over 1200 new twin and townhouse developments and apartment projects approved in recent years. H.T., 5/14/08 at 37-56; R.R. at 1223a-1242a. Those projects included developments for townhouses, apartment style condominiums, twin homes, patio homes and apartments.
The ZHB also found, based on Schmehl's testimony, that although the Township had provided the opportunity to develop attached housing, many developers, including KMRD, chose not to build attached or multi-family housing, but chose to build another type of housing. For example, in 2004, one of the principals of KMRD had a choice of what type of housing to develop in a TC "Town Center" District, and chose to build townhomes, not apartments.
The evidence in the record does not persuade this Court to overturn the ZHB's determination that the Township has provided its fair share of land for mobile homes and apartments. The credited testimonies of Weis and Schmehl convince this Court that sufficient evidence supported the ZHB's conclusion that the Township has made sufficient land available to meet its fair share of the regional need for higher density multi-family housing.
In sum, the ZHB did not err when it concluded that the FP District was not in a logical path of development and growth, the Township was already highly developed and had met its fair share of the burden of providing space for apartment and other multi-family dwellings. The common pleas court did not err when it affirmed the ZHM's denial of KMRD's de facto exclusionary challenge.
III.
Are the Provisions Governing Development of Townhouses
And Apartments Unduly Burdensome and Unreasonably Restrictive?
KMRD next argues that the 2006 Zoning Ordinance is unduly burdensome and restrictive with respect to mobile home and apartment housing. KMRD argues that the Ordinance was unduly burdensome because the maximum density for residential housing is 5.5 dwellings per acre. This density was only permitted under the B-13 Performance Subdivision which allowed for all types of dwelling units including single-family detached dwellings, twin units, townhouses, and apartments.
KMRD contends that any reasonable developer would choose to build a single-family dwelling over an apartment or other multi-family unit because single-family homes are more profitable. KMRD contends by permitting a single-family detached dwelling at the same density as multi-family housing, the Township has effectively excluded multi-family housing by rendering the opportunity to develop multi-family housing "illusory."
In Heritage II, this very issue was rejected by this Court. There, Heritage maintained that through the use of limitations on density and the technique of allowing other, more profitable housing types to be developed at the same density, the Plumstead Township created a de facto exclusion of multi-family dwellings. Heritage II, 833 A.2d at 1211.
Like KMRD, Heritage relied on Stahl v. Upper Southampton Township Zoning Hearing Board, 606 A.2d 960 (Pa. Cmwlth. 1992), which sustained a developer's claim that the zoning ordinance was unconstitutional because it found that the ordinance provisions governing mobile home park development were unduly burdensome and rendered the opportunity to develop mobile home parks illusory. The Stahl Court compared the 9,000 square foot minimum lot size applicable to a mobile home unit to the 5,000 square foot minimum lot size applicable to twin homes and to the 2,000 square foot minimum lot size applicable to townhouses in zoning districts which permitted multi-family housing. This Court reasoned that by "not providing for a mobile home park use of higher density and banning it from [a multifamily zoning district] this township has indeed excluded entirely the mobile home park concept." Stahl, 606 A.2d at 966.
In Heritage II, this Court distinguished Stahl noting that in Stahl, the developer complained of lot size requirements for mobile home parks. As in Heritage II, the issue of minimum lot size for multi-family dwelling units was not at issue here.
In order to establish that an ordinance is unconstitutional on economic terms, the challenger must establish that the use in question "is economically unfeasible." Kirk v. Zoning Hearing Board of Honey Brook Township, 713 A.2d 1226, 1231 (Pa. Cmwlth. 1998). However, an ordinance will not be declared unconstitutional simply because it may deprive the owner of the most lucrative and profitable uses. Heritage II, 833 A.2d at 1211.
In the present controversy, KMRD points to testimony of witnesses on both sides who testified that it was less profitable to construct multi-family units rather than single family units. KMRD states "this is because a developer will make a greater profit developing single-family residential units than any other housing type when single-family dwellings can be developed at the same density as multifamily dwellings." KMRD's Brief at 31. However, this Court does not accept that such a sweeping statement was sufficient to prove that the apartment or other multi-family use was "economically unfeasible."
Furthermore, the evidence established that KMRD's own witnesses admitted that market considerations rather than zoning restrictions were the primary factor in a developer's decision relating to the type of residential units constructed in Forks Township. See ZHB Decision, December 4, 2008, Findings of Fact, 79-80, at 29-30.
The common pleas court did not err when it affirmed the ZHB's rejection of this constitutional challenge.
IV.
Does the Ordinance Fail to Provide for the
Development of a Reasonable Range of Multi-Family Dwellings?
Next, KMRD contends that the Ordinance is unconstitutional because it fails to provide an opportunity for a reasonable range of multi-family dwellings as mandated by Section 604(4) of the MPC, 53 P.S. §10604(4).
Section 604(4) of the MPC, 53 P.S. §10604(4), provides that the provisions of zoning ordinances shall be designed:
(4) to provide for the use of land within the municipality for residential housing of various dwelling types encompassing all basic forms of housing, including single family, and two family dwellings, and a reasonably range of multi-family dwellings in various arrangements, mobile homes and mobile home parks, provided however, that not zoning ordinance shall be deemed invalid for the failure to provide for any other specific dwelling type.
This Court has already addressed the current development of Forks Township in this opinion. As a result of the aforementioned discussion, this Court finds the Township presented substantial evidence of compliance with Section 604 of the MPC, 53 P.S. §10604(4).
The order of the common pleas court is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge Judge Simpson did not participate in the decision in this case. ORDER
AND NOW, this 4th day of January, 2012, the Order of the Court of Common Pleas of Northampton County in the above-captioned case is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge