# In Re Appeal of M.A. Kravitz Co. > Supreme Court of Pennsylvania · April 25, 1983 · 501 Pa. 200 URL: https://www.frixlaw.com/law-library/cases/9757819 ## Case - **Full name:** In Re APPEAL OF M.A. KRAVITZ CO., INC. From Denial of Curative Amendment Application by the Board of Supervisors of Wrightstown Township. Appeal of BOARD OF SUPERVISORS OF WRIGHTSTOWN TOWNSHIP - **Court:** Supreme Court of Pennsylvania - **Decided:** April 25, 1983 - **Citations:** 501 Pa. 200; 460 A.2d 1075; 1983 Pa. LEXIS 525 - **Precedential status:** Published - **Opinion:** Dissent by Hutchinson - **Judges:** Zappala, Roberts, Nix, Larsen, Flaherty, McDermott, Hutchinson - **Cited by:** 24 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/9757819 ## Opinion text HUTCHINSON, Justice, .dissenting. No matter what the intent of its draftsmen, the plain language of the Wrightstown Township Zoning Ordinance effectively excludes townhouses, a legitimate residential use which persons of modest means demand to satisfy their right to own a home. Because this practical exclusion of a large *217 class of people from home ownership is not cured by other provisions in the ordinance providing for tenancies in garden apartments or other multi-family dwellings, I believe the ordinance is unconstitutional. I therefore dissent. It is clear that the only zone in this township in which townhouses are arguably allowed is the R-4 Zone. With respect to permitted use in the R-4 Zone, the language of Section 204.1(A) of this ordinance is succinct and explicit: “In R-4 districts land, buildings, or premises shall be used by right for only one or more of the following: Multi-family dwelling constituting a single operating or propriety (sic) unit.” The definition of a multi-family dwelling in Section 102.3 is equally clear: “A building designed for or occupied by three or more families.” A “townhouse” is defined in Section 102.3 is “a building designed for and occupied exclusively as a residence for one family and having a party wall ... in common with an adjacent building.” Thus, the housing category “townhouse” and the housing category “multi-family dwelling” are mutually exclusive. Relying on the testimony of experts the majority affirms the Zoning Hearing Board’s conclusion that “the intention of the drafters was to permit townhouse development as well as other multi-family dwellings in the R -4 district.” See Maj.Op. 501 Pa. at p. 212, 460 A.2d at p. 1081. 1 Since townhouses are not included in the definition of “multi-family dwellings” they are nowhere allowed in Wrightstown *218 Township under this ordinance and expert testimony cannot vary this plain meaning. Legislative intent is expressed in the words of a. command, not in the mind of its draftsman. Thus, if the words of a statute or ordinance are clear, its letter will not be disregarded under the pretext of pursuing an unstated legislative intent. 1 Pa. C.S. § 1921(b) (Supp. 1982-83); In re Estate of Fox, 494 Pa. 584 , 431 A.2d 1008 (1981); In re Lawrence Township School District, 362 Pa. 377 , 67 A.2d 372 (1949). See also City of Pittsburgh v. Royston Service, Inc., 37 Pa. Commonwealth Ct. 394 , 390 A.2d 896 (1978). Thus, the Commonwealth Court correctly concluded: The question is .. . whether the R-4 multi-family district contemplates single-family attached townhouse developments specified by the zoning ordinance. We answer in the negative. The draftsmen of the ordinance had the foresight to provide for single-family attached dwellings by specifically referring to townhouse development, and multi-family dwellings, defining them as apartments and garden apartments. However, the R-4 district, in allowing only multi-family dwelling development, cannot be reasonably construed to incorporate the separate and distinctly provided for single-family attached townhouse use.... We find no imprecision in the Township’s specific allowance for residential townhouse use, and can only conclude that the Ordinance fails to provide a home for its legitimate and necessary development. 53 Pa. Commonwealth Ct. 622, 627-28 , 419 A.2d 227, 230 (1980). This ordinance precludes a developer from building and marketing townhouses as the single family dwellings for which they are adapted. It is, therefore, necessary to determine whether the Township’s failure to make any provision for that use is exclusionary. A party attacking a zoning ordinance as exclusionary will not succeed by showing only that certain types of architecture are proscribed if the use to which that style is adaptable is not excluded. See Anderson, Law of Zoning In Pennsylvania § 7.08 (1982). Conversely, it *219 should not be enough to show a particular architectural style is allowed, if the use to which it is adapted is proscribed. However, when we focus on a particular form of residential development it is difficult to neatly categorize that form as either a distinct use or an architectural style. To date, this Court has distinguished only between multi and single family use, finding each to be a distinct residential use. See e.g. Surrick v. Zoning Hearing Board of Upper Providence Twp., 476 Pa. 182 , 382 A.2d 105 (1977); Girsh Appeal, 437 Pa. 237 , 263 A.2d 395 (1970) (plurality opinion); Township of Willistown v. Chesterdale Farms, 462 Pa. 445 , 341 A.2d 466 (1975) (plurality opinion). In some instances, townhouse construction has been used for multi-family rental use. Frequently, however, townhouse construction serves to provide families of moderate means with the opportunity to own or rent economical dwellings which preserve some of the benefits of privacy, ease of access and open space normally associated with single family dwellings. See Annot., 99 A.L.R.2d 873 (1965). Descendants of the old Philadelphia rowhouses, townhouses provide single family residences for prospective home owners of moderate means. The longitudinal orientation or “row” design makes private yards practical. Moreover, townhouses do not require common interior areas, i.e. hallways, stairways and elevators with their accompanying loss of privacy and difficulty in apportioning maintenance cost and responsibility. The townhouse also has an economic advantage over detached dwellings because of shared wall construction. It is a realistic alternative for moderate income persons who want to own a single family dwelling rather than rent apartment units. 2 See Ryan, Pennsylvania Zoning Law and Practice § 3.5.9 (Revised January 1, 1979). Thus, following Girsh Appeal , Commonwealth Court correct *220 ly held in Camp Hill Development Co. v. Board of Adjustment, B. of Dauph., 13 Pa. Commonwealth Ct. 519 , 319 A.2d 197 (1974) that townhouses as a legitimate means of meeting a particular demand, cannot be excluded from suburban housing. See also Dublin Properties v. Upper Dublin Twp., 21 Pa. Commonwealth Ct. 54 , 342 A.2d 821 (1975); Appeal of Olson, 19 Pa. Commonwealth Ct. 514 , 338 A.2d 748 (1975). As Commonwealth Court said in Appeal of Olson: We do not believe, however, that it is necessary for a municipality to provide for every conceivable type or style of residential use in its zoning ordinance. If the landowner challenges a zoning ordinance because it does not provide for some exotic style, which is not a recognized and needed style or which may be deemed to be within another residential classification already provided for in the zoning ordinance, such a challenge would be defeated. But, as we review the law established in this Commonwealth, townhouses (which are nothing more than row houses in a more modern design) are a reasonable, legitimate and recognized residential usage and a municipality must provide for such usage unless the municipality is able to sustain the burden of proving that the failure to so provide is related to the public health, welfare and safety. Id., 19 Pa.Cmwlth. at 520 , 338 A.2d at 751 . Moreover, the defect in the Wrightstown ordinance is not curable by amendment to permit townhouses in the R-4 district. Because of the ordinance’s restriction against individual ownership of dwelling units in the R-4 zone, moderate income families would still be effectively precluded from a practical alternative to ownership of detached dwellings. I disagree with the statement of the majority that the Girsh holding is restricted to that case’s facts. The rationale for Girsh first áppears in Exton Quarries v. Zoning Hearing Board, 425 Pa. 43 , 228 A.2d 169 (1967) (plurality opinion, Roberts, J.). Therein this Court held that “a zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare *221 than an ordinance which merely confines that business to a certain area in the municipality.” Id., 425 Pa. at 60 , 228 A.2d at 179 . Furthermore, in Beaver Gas. Co. v. Osborne Borough, 445 Pa. 571, 577 , 285 A.2d 501, 504-05 (1971) we said: In situations involving the total prohibition of otherwise legitimate land uses, which, by common experience, appear to be ... innocuous . . . the applicant has met his burden of overcoming the presumption of constitutionality by showing the total ban. Thereafter, if the municipality is to sustain the validity of the ban, it must present evidence to establish the public purpose served by the regulation. It is not inconceivable, of course, that the municipality could establish the validity of a total ban but it is its responsibility to do so. In the instant case, the municipality offered no evidence to establish the validity of the regulation and has, consequently, failed to show that the regulation bears a relationship to the public health, safety, morals and general welfare. There is no evidence here to show a public purpose sufficient to justify the total exclusion of townhouses. See Ryan, supra at § 3.5.9. Where a municipality totally excludes a recognized residential use two distinct interests are foreclosed: (1) the rights of property owners to be free from “an unreasonable intermeddling with the private ownership of property”. Ex-ton Quarries, supra; and (2) the interest of our growing population looking “to hitherto undeveloped areas in search of a comfortable place to live.” Girsh Appeal, supra. See also Concord Township Appeal, 439 Pa. 466 , 470 n. 2, 268 A.2d 765 , 766 n. 2 (1970) (plurality opinion) (quoting Sager, Tight Little Islands: Exclusionary Zoning Equal Protection and the Indigent, 21 Stan L.Rev. 767, 791 (1969); Annot., 48 A.L.R.3d 1210 , 1218-22 (1973)). Such total exclusion of otherwise legitimate uses cannot be justified by concluding the Township is not in the path of development under the “fair share” test announced by a plurality of this Court in Willistown and a bare majority in Surrick v. Zoning Hearing *222 Board, supra. The simple fact that someone is anxious to build townhouses in this Township is a strong indication that people desire them. We do not believe Wrightstown Township can close its doors to these people. See Girsh Appeal, 437 Pa. at 245 , 263 A.2d at 399 . Indeed, the determination of what is a “fair share” and what communities are “in the path of development” will inevitably entangle this Court in problems of regional or community land use planning, problems unsuitable to judicial determination. While exclusions of particular uses may bear some relationship to the ends of modern land use planning, I do not believe that the more remote suburbs on the periphery of primary growth areas may effectively close their doors to moderate and low income persons who desire to own homes in such communities. The threshold argument of the “fair share” test, that the municipality is in the path of development, implies that a community may exclude townhouses if it is not in the path of development, implies that a community may exclude townhouses if it is not in the path of development even though the exclusion lacks the requisite substantial relationship to health, safety or general morals of the community. See Surrick v. Zoning Hearing Board, supra; Girsh Appeal, supra; National Land and Investment Co. v. Kohn, 419 Pa. 504 , 215 A.2d 597 (1965); Glorioso Appeal, 413 Pa. 194 , 196 A.2d 668 (1964). See also Hopewell Township Board of Supervisors v. Golla, 499 Pa. 246 , 452 A.2d 1337 (1982) (plurality opinion) (collecting cases). A citizen’s right to the enjoyment of private property under Article I, Section I of the Pennsylvania Constitution and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, as well as the concomitant rights of newcomers to seek affordable housing, preclude such unreasonable governmental interference. The purposes of zoning were summarized by the legislature in Section 105 of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended 53 P.S. § 10105. It is the intent, purpose and scope of this act to protect and promote safety, health and morals; to accomplish a *223 coordinated development of municipalities, other than cities of the first and second class; to provide for the general welfare by guiding and protecting amenity, convenience, future governmental, economic, practical, and social and cultural facilities, development and growth, as well as the improvement of governmental processes and functions; to guide uses of land and structures, type and location of streets, public grounds and other facilities; and to permit municipalities, other than cities of the first and second class, to minimize such problems as may presently exist or which may be foreseen. I do not believe that Wrightstown Township’s exclusion of townhouses bears a substantial relationship to these purposes. Therefore, I dissent. . The Township’s expert testimony interpreting its zoning ordinance falls under two types: (1) testimony with respect to the intentions of the Township at the time the ordinance was adopted; and (2) expert testimony comparing townhouses to apartments. Based on that testimony, the Zoning Hearing Board found that the ordinance permitted “townhouses” in the R-4 zone. Common Pleas did not consider whether such testimony constituted substantial evidence to support the Board’s finding. Rather it held that the express language of the Ordinance permitted townhouses in the R-4 zone. Common Pleas mistakenly relied on Benham v. Board of Supervisors of Middletown, Twp., 22 Pa. Commonwealth Ct. 245 , 349 A.2d 484 (1975). However, in Benham the Township had permitted townhouses in a Planned Residential Development Ordinance. Moreover, the definitions of multi-family dwelling in the Middletown Township ordinance did not preclude townhouses as the Wrightstown Township ordinance does. . The Wrightstown Township Zoning Hearing Board found that families earning up to $15,000 a year are primarily restricted to apartments and townhouses with some limited access to detached dwellings. It also found that in the next ten years no housing will be built for less than $40,000.00 and people making less than $13,000 to $15,000 will not be able to afford to purchase home. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757819. Public record. Not legal advice.