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December 25, 2016 I Volume 10 I Issue 24 Zoning Bulletin <br />Constitutionality of zoning <br />restrictions —Developers challenge <br />zoning ordinance as <br />unconstitutionally restrictive of <br />apartment uses <br />Developers contend land zoned for apartments is <br />inadequate to support the township's "fair share" <br />of apartments given the ordinance's restrictions <br />that make apartment construction "economically <br />infeasible" <br />Citation: KS Development Company, L.P. v. Lower Nazareth Town- <br />ship, 2016 WL 6242509 (Pa. Commw. Ct. 2016) <br />PENNSYLVANIA (10/26/16)—This case addressed the issue of <br />whether a zoning ordinance, which placed intensive restrictions on the <br />manner in which apartments could be developed was de facto (i.e., in <br />fact; in actuality) exclusionary in violation of substantive due process. <br />More specifically, the case addressed whether a zoning ordinance <br />deprived an apartment developer of its constitutionally protected prop- <br />erty interest without due process of law by effecting a de facto exclu- <br />sion of apartments as a use within the Township. <br />The Background/Facts: KS Development Company, L.P. and KS <br />Development Company 2, L.P, and Woodmont Properties, LLC (col- <br />lectively, the "Developers") sought to construct apartments in the Of- <br />fice Park District ("OP District") in the Lower Nazareth Township (the <br />"Township"). The Township's Zoning Ordinance (the "Ordinance") <br />provided for apartments by right in the Medium Density Residential <br />District ("MDR District") in the Township and in a Mixed -Use Overlay <br />Light Industrial District (the "Mixed -Use Overlay District"). The <br />Developers contended that despite the Ordinance's facial allowance of <br />apartments in those districts, the Township's zoning scheme affected a <br />"de jure exclusion" (i.e., exclusion in accordance with law) of apart- <br />ments in the Township because the Ordinance subjected apartment use <br />to such stringent restrictions that the actual development of apartments <br />was economically infeasible. The Developers argued that such a de <br />jure exclusion was in violation of substantive due process in that it <br />deprived the Developers of their constitutionally protected property <br />interest without due process of law. The Developers sought to "cure the <br />8 © 2016 Thomson Reuters <br />