Posted by: Patricia Salkin | November 23, 2016

PA Appeals Court Finds Zoning Ordinance That Placed Intensive Restrictions on the Manner in Which Apartments could be Developed was not De Facto Exclusionary

KS Development Company, L.P. and KS Development Company 2, L.P. (collectively KS Development), and Woodmont Properties, sought to reverse the order of the Court of Common Pleas of Northampton County affirming the decision and order of the Lower Nazareth Township Board of Supervisors, which denied KS Development’s request for a curative amendment to the Lower Nazareth Township Zoning Ordinance. On appeal, KS Development and Woodmont argued that the Ordinance totally excludes apartments as a permitted use within Lower Nazareth Township and that, in the alternative, the Ordinance failed to accommodate for the Township’s fair share of multi-family housing.

The Appellees contended that because apartments are defined as containing dwelling units and a personal care center, life care center, and retirement village may also contain dwelling units than each of these uses can be considered as including apartments. However, the court rejected this argument, finding that under the Ordinance the presence of a “dwelling unit” did not mean that the use permitted is a “dwelling” and it was equally clear that “apartments” were “dwellings” whereas personal care centers, life care centers, and retirement villages were not “dwellings,” but separately defined categories of use that contain residential features.

Despite this, the court also found that the analysis by KS’s expert regarding the level of development in the township incorrectly examined the percentage of total undeveloped land and the percentage of land available for the class of housing alleged to be unconstitutionally excluded. Specifically, the court found this analysis to lack persuasive value, as it treated areas zoned for agricultural use and actively used for agricultural purposes as undeveloped. Here, the MPC permitted communities to enact ordinances to protect and promote agricultural uses of land and identify the protection and promotion of agricultural land and uses as one of the purposes of zoning in the Commonwealth. Additionally, prior caselaw held that land used for active agricultural and agricultural-related purposes is properly considered to be developed land for purposes. By failing to account for land used for agricultural purposes, KS Development’s expert necessarily overestimated the amount of land available for development, and consequently concluded that the Township was underdeveloped. Accordingly, the court held that the Board and the Trial Court did not err by rejecting KS Development’s challenge to the Ordinance because KS Development did not carry its burden to demonstrate that the Ordinance was de facto exclusionary of apartment uses.

Moreover, while KS Development produced evidence showing that developing apartment complexes in accordance with the Ordinance was economically infeasible, the court noted that this was not KS Development’s burden. Instead, in order to carry its burden to demonstrate that the Ordinance was unconstitutional because it was de facto exclusionary, KS Development had to demonstrate that the development of apartments was economically infeasible. Additionally, the Township’s intensive restrictions on the manner in which apartments were developed were not shown to be unreasonable and unrelated to public health, safety, morals and general welfare. Accordingly, the court held that the trial court did not err in affirming the Board’s conclusion that KS Development’s challenge to the Ordinance as unduly restrictive of the development of various arrangements of multi-family dwellings was without merit.

KS Development Company, L.P. v. Lower Nazareth Township, 2016 WL 6242509 (PA Cmmwlth 10/26/2016)


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