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Key Topic: Zoning Validity Challenges

Surrick v. Zoning Hearing Board of Upper Providence Twp.,
476 Pa. 182 (1978).

In what is now recognized as a landmark decision for determining whether a zoning ordinance disproportionately and unconstitutionally precludes multi-family dwellings (MFDs), the Pennsylvania Supreme Court set forth a three-step multi-factor test as well as the scope of judicial review for claims alleging this defect.

Seeking to build apartments and townhouses on a 16.25-acre tract zoned A-1 Residential (single-family residences on 1-acre minimum lots), Developer applied for a variance from the zoning hearing board and simultaneously challenged the substantive validity of the ordinance. Developer argued that the ordinance unconstitutionally excluded MFDs from the Township because the Township had only 1.14% of total acreage available for MFDs, and within these areas, MFDs competed with many other (mostly commercial) uses. The Township denied the variance. After appealing its constitutional claims all the way to the Supreme Court, Developer prevailed.

After tracing the development of Pennsylvania law relating to partial exclusions, the Supreme Court 1) solidified the appropriate test to determine when an ordinance contains an unconstitutional partial exclusion of MFDs and 2) established the appropriate standard of review for such challenges. Under the Supreme Court's three-part test, the first step is to ask whether "the community in question is a logical area for development and population growth," considering factors such as the proximity to large metropolitan areas as well as the community and the area's projections for growth. The second step is to determine the "present level of development," considering factors such as the area's population density, the percentage of undeveloped land, and the percentage available for MFDs. The third step is to determine whether the ordinance has an "exclusionary impact." Under this step, the focus is on the effect of the ordinance, rather than its intent. Ordinances that restrict a community from providing a "fair share" of the region's demand for MFDs will not survive scrutiny.

Elaborating on prior "fair share" precedent, the Supreme Court held that a partial exclusion is unconstitutional when the amount of land zoned for multi-family use is "disproportionately small" relative to the overall regional growth pressures and the amount of undeveloped land in the community available for multi-family dwellings. Although the Supreme Court emphasized in this case that the MFDs competed with "more than a dozen other uses" within the (already limited) areas of the Township allowing for MFDs, the Supreme Court noted that the factors used in this case to determine "disproportionately small" should not be construed as the only germane factors for future cases.

Finally, the Supreme Court rejected the Township's argument that such balancing analysis by the courts will usurp the legislative powers of local governments. The Supreme Court sought to minimize such concerns by establishing that the judicial review of such challenges will "be limited to determining whether the [municipality's] zoning formulas . . . reflect a balanced and weighted consideration of the many factors which bear upon local and regional housing needs and development."


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