# Berger v. Board of Supervisors

> Commonwealth Court of Pennsylvania · August 8, 1977 · 31 Pa. Commw. 386

URL: https://www.frixlaw.com/law-library/cases/6363871

## Case

- **Full name:** Henry A. Berger and Croxley Green Associates v. Board of Supervisors of Whitpain Township, Appellant Henry A. Berger and Croxley Green Associates v. Whitpain Township, R. Patterson Mann and Five Points Civic Association. R. Patterson Mann and Five Points Civic Association
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** August 8, 1977
- **Citations:** 31 Pa. Commw. 386; 376 A.2d 296; 1977 Pa. Commw. LEXIS 994
- **Precedential status:** Published
- **Opinion:** Dissent by Mencer
- **Judges:** Blatt, Bowman, Crumlish, Kramer, Mencer, Rogers, Wilkinson
- **Cited by:** 10 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/6363871

## Opinion text

Dissenting Opinion by
Judge Mencer:
I respectfully dissent. I cannot conclude that the zoning ordinance in question here prohibits townhouse development throughout Whitpain Township. I am of the view that townhouse use is permitted by special exception pursuant to Section 801(G) (d) of the Whit-pain Township Zoning Ordinance.
Section 801(G) (d) provides that “[a]ny other lawful and legitimate use not otherwise specifically provided for in this ordinance” may be authorized by special exception. I am satisfied that this catchall section was intended to prevent an attack on the zoning ordinance as being exclusionary in contravention of Girsh Appeal, 437 Pa. 237 , 263 A.2d 395 (1970).
The majority argues that townhouses are not merely “not otherwise specifically provided for” in the ordinance but are expressly excluded as a permitted use by the ordinance’s definition of a multiple dwelling. My response to this contention is that townhouses are so excluded only in the B-3 Multi-Family District but allowed, by special exception, in the I Limited Industrial District. Compare Benham v. Middletown Township Board of Supervisors, 22 Pa. Commonwealth Ct. 245 , 349 A.2d 484 (1975).
The interpretation placed on Section 801(G) (d) by the majority seems to me to make that section almost meaningless, whereas I deem it to be the safety valve which precludes an exclusionary zoning challenge. Therefore, I would reverse and reinstate the decision of the Whitpain Township Board of Supervisors.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6363871. Public record. Not legal advice.