Jim Thorpe Area School District v. Kidder Township ZHB, 42 D&C 4th 432 (Carbon C.C.P., June 9, 1999)

Case Details:

Cross Reference: Public School Code Section 702

Section 702 of the Public School Code grants specific authority for school boards to select sites to build schools as they deem necessary. In this case, the township permitted schools only by special exception and only in the R3 District. The school board chose a site in another district resulting in the denial of a permit.

The court considered the validity of the zoning ordinance under the “fair share” doctrine as well as the issue of preemption of zoning regulations by the Public School Code.

As to preemption, the court held that the specific authorization of site selection under the public school code takes primacy over the general provisions of a zoning ordinance. The court reiterated that such preemption does not totally eliminate municipal zoning regulation such as parking, set-back or other technical requirements of the ordinance. As to the “use” however, preemption does apply.

The court also considered the issue of “exclusionary” zoning. In this case only 2% of the Township was zoned R3, the only zone which allowed for school buildings. The court found that the ordinance “effectively precluded” the erection of a school in the Township and thus violated the “fair share” doctrine as stated in Township of Willistown v. Chesterdale Farms, Inc. 462 Pa 445, 341 A2d 466 (1975). The ‘fair share’ test requires local political units to plan for and provide land use regulations which meet the legitimate needs of all categories of people who desire to live within its boundaries. Because no schools were located in the township and the township was in a population growth area that critically needed schools, the ordinance was held unconstitutional because it failed to provide for its fair share of land for development of public schools.

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