# In Re Appeal of Elocin, Inc.

> Supreme Court of Pennsylvania · April 27, 1983 · 501 Pa. 348

URL: https://www.frixlaw.com/law-library/cases/9767233

## Case

- **Full name:** In Re Appeal of ELOCIN, INC., From the Denial of Its Challenges to the Validity of the Zoning Ordinance and Map of Springfield Township, Delaware County, and of Its Curative Amendment Application by the Board of Commissioners of Springfield Township, Appellants
- **Court:** Supreme Court of Pennsylvania
- **Decided:** April 27, 1983
- **Citations:** 501 Pa. 348; 461 A.2d 771; 1983 Pa. LEXIS 521
- **Precedential status:** Published
- **Opinion:** Concurring in part by Hutchinson
- **Judges:** Zappala, Roberts, Nix, Larsen, Flaherty, McDermott, Hutchinson, Commonwealth, Elocin, Inc, Cmwlth
- **Cited by:** 9 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/9767233

## Opinion text

HUTCHINSON, Justice,
concurring and dissenting.
Springfield Township provides for multi-family use in zones allowing two story apartments. I do not believe that mid-rise or high-rise apartments constitute distinct multifamily uses for which separate provision must be made. Therefore, I agree with the majority’s holding that this zoning ordinance is not unconstitutionally exclusionary in failing to additionally provide for mid-rise and high rise apartments. 1 However, for the reasons recited in my dissenting opinion in Appeal of Kravitz, 501 Pa. 200 , 460 A.2d 1075 (1983), I would hold that the Springfield Township ordinance may not totally exclude townhouses. I do not believe the fair share test adopted by this Court in Surrick v. Zoning Hearing Board of Upper Providence Twp., 476 Pa. 182 , 382 A.2d 105 (1977) with its distinction between “developing” and “developed” communities is applicable where a municipality fails to provide in its zoning ordinance for a distinct and legitimate residential use. The fact that 250 twin homes exist in the Township as non-conforming uses *356 does not serve to cure the defect caused by the total exclusion. If it did, a municipality would be able to freeze its development at any stage it desired. Living communities are at least dynamic things and cannot cease developing. 2
However, because there is substantial evidence in the record that Elocin’s site is unsuitable for intensive residential development, I would remand the case to Common Pleas for consideration of the reasonableness of that portion Elocin’s plans for townhouses on this site as provided in Section 1011(2) of the Pennsylvania Municipalities Planning Code. Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11011(2).
. Although I am troubled by the fact that much of the multi-family housing in this township is non-conforming I am not prepared to say that the remaining twenty-nine clear acres zoned for apartments is a mere token. See Girsh Appeal, 437 Pa. 237 , 263 A.2d 395 (1970) (plurality opinion); Dublin Properties v. Upper Dublin Twp., 21 Pa. Commonwealth Ct. 54, 59 , 342 A.2d 821, 823 (1975).
. See e.g. Girsh Appeal, supra; Dublin Properties v. Upper Dublin Twp., 21 Pa. Commonwealth Ct. 54, 59 , 342 A.2d 821 (1975). There is nothing in this record that would support a conclusion that the presence of these non-conforming twin homes would cause the addition of townhouses on the minimal open acreage of this township to have such an incremental impact as to be the “final straw” which totally disturbs the character of the community. See Township of Paradise v. Mt. Airy Lodge, 68 Pa. Commonwealth Ct. 548 , 449 A.2d 849 (1982). This issue is clearly recognized and carefully articulated by Judge MacPhail writing for the unanimous court below.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767233. Public record. Not legal advice.