Agenda - Planning Commission - 02/02/2017

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Zoning Bulletin December 25, 2016 I Volume 10 I Issue 24 alleged constitutional defect" of the total exclusion on apartment use with amendments to the Ordinance that would permit construction of apartments in the OP District. The Developers made a request to the Township for their proposed curative amendment to the Ordinance. The Township's Board of Supervisors (the "Board") denied the request. The Developers appealed that denial to court. The court affirmed the Board's denial. The Developers again appealed. DECISION: Judgment of Common Pleas Court affirmed. The Commonwealth Court of Pennsylvania first held that, contrary to the Developers' argument, the Township's Zoning Ordinance's stringent restrictions on apartments did not affect a de jure exclusion on apartments in certain districts in violation of substantive due process. The court further held that the Ordinance's stringent restric- tions on apartments also was not a de facto exclusion that would require a curative amendment for the constitutional defect. In so holding, the court first distinguished a de jure exclusion from a de facto exclusion. The court explained that "[i]f an ordinance totally excludes a particular use, such as mobile homes or billboards, then the ordinance is de jure exclusionary." On the other hand, "if an ordinance provides for a particular use but applies additional restrictions on the use that have the effect of excluding or making provision of the use il- lusory, then the ordinance is de facto exclusionary." Here, the court found that the Ordinance provided for apartments in the MDR and Mixed -Use Overlay Districts. Therefore, the court determined that the Ordinance was not de jure exclusionary (i.e., did not exclude apartments under the law). Having made that conclusion, the court next addressed whether the Ordinance effected a de facto exclusion (i.e, exclusion in fact, though not necessarily under the law) of apartments as a use within the Township such that the Ordinance deprived the Developers of their constitutionally protected property. interest without due process of law. The court explained that where a challenge to a zoning ordinance al- leges that the ordinance effects a de facto or partial exclusion of a class of housing, the courts employ a three-part test to determine the constitutionality of the zoning ordinance. First, the court determines "whether the community is in the path of growth and in a logical place for growth and development" by looking at factors such as: projected population growth; anticipated economic development; access by ma- jor roads or public transportation; the growth and development of neighboring municipalities; proximity to a large metropolitan area; and attempts by developers to obtain permission to build. Second, when it is demonstrated that a community is in the path of growth, courts determine the level of development in the area by looking at factors © 2016 Thomson Reuters 9