# Benham v. Board of Supervisors > Commonwealth Court of Pennsylvania · December 8, 1975 · 22 Pa. Commw. 245 URL: https://www.frixlaw.com/law-library/cases/6362767 ## Case - **Full name:** Grant J. Benham, Paul Darlington and Richard S. Darlington v. Board of Supervisors of Middletown Township and John C. Snyder and William L. Potter - **Court:** Commonwealth Court of Pennsylvania - **Decided:** December 8, 1975 - **Citations:** 22 Pa. Commw. 245; 349 A.2d 484; 1975 Pa. Commw. LEXIS 1314 - **Precedential status:** Published - **Opinion:** Dissent by Blatt - **Judges:** Blatt, Bowman, Crumlish, Kramer, Mencer, Rogers, Wilkinson - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6362767 ## Opinion text Dissenting Opinion by Judge Blatt: The essential matter at issue in this case is whether or not townhouse construction is prohibited in Middle-town Township, Delaware County. Such a prohibition would, of course, be unconstitutional. Camp Hill Development Co., Inc. v. Zoning Board of Adjustment, 13 Pa. Commonwealth Ct. 519 , 319 A.2d 197 (1974). And, while the majority of the Court now holds that the Middletown Township Zoning Code allows for townhouse development, I believe that it does not. The majority cites Article I, Section 100 of the Zoning Code as permitting townhouses as “multiple dwellings” in certain zoning districts, noting that a multiple dwelling is defined therein as “[a] building designed for and occupied exclusively as a residence for two or more families living independently of one another.” Townhouses, however, are single family homes, each attached by a common party wall to a similar home next to it. Each is a separate building, and it seems to me, therefore, that a row of these homes would not fall within the township’s definition of a multiple dwelling. More importantly, the majority holds that townhouses are also permitted by Section 2 of Ordinance No. 136 *258 which added a Planned Residential Development (PRD) article to the township zoning code, and which expressly allows for “single family attached homes which shall be arranged as town houses.” Section 953(a)(3) of Ordinance No. 136. It is true, of course, that Article VII 1 of the Municipalities Planning Code (MPC) enables municipalities to provide for Planned Residential Developments and also extends wide latitude to them in establishing regulations and conditions necessary for approval of such plans. The regulations under Ordinance No. 136, however, restrict the maximum density of PRD’s to no greater than one housing unit per 40,000 square feet or approximately to one housing unit per acre, with each townhouse also required to have a minimum lot area of 4,000 square feet. These requirements hardly seem reasonable. For every townhouse which is constructed on a 4,000 square foot lot, 36,000 square feet of open space must be set aside, and such a requirement hardly seems to be related to townhouse usage. Moreover, under such restrictions, the purchase price of land needed to support townhouse PRD development can effectively make the developed properties unmarketable. Here, for example, the appellant testified that a property developed in accordance with the PRD restrictions would cost approximately $49,000, whereas such townhouses could be marketed only in a $30,000 to $40,000 range. Consequently, by making the development of townhouse PRD’s unfeasible, the township effectively prohibits townhouse construction, and I believe that such de facto exclusionary zoning cannot be upheld. Shomo v. Derry Borough, 5 Pa. Commonwealth Ct. 216 , 289 A.2d 513 (1972). I would, therefore, reverse the court below. Judge Kramer joins in this dissent. . Act of July 31, 1968, P. L. 805, as amended, 53 P. S. §10701 et seq. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6362767. Public record. Not legal advice.