Surrick v. ZHB OF U. PROVIDENCE TP.
382 A.2d 105, 1977 Pa. LEXIS 953, 476 Pa. 182 (1977)
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Rule of Law:
A local zoning ordinance is unconstitutionally exclusionary, violating substantive due process, if it fails to provide a "fair share" of land for multi-family dwellings in a community that is a logical area for development and population growth, especially when the amount of land allocated is disproportionately small in relation to regional housing needs and undeveloped land.
Facts:
- Robert B. Surrick owned four acres of land and had an agreement of sale for an additional 12.25 acres (totaling 16.25 acres) in Upper Providence Township.
- Surrick sought to construct apartments and townhouses on this 16.25-acre tract.
- The 16.25-acre tract was located in an area zoned A-1 Residential, which only permitted single-family dwellings on one-acre lots.
- Upper Providence Township is a western suburb of Philadelphia, located about 12 miles from the city center, encompassing approximately 3,800 acres, with about one-quarter of the land undeveloped.
- The township's zoning ordinance classified only 43 acres, or 1.14% of its total acreage, as a B district, the sole classification permitting multi-family housing.
- The B district was substantially developed and permitted more than a dozen other commercial and institutional uses, forcing multi-family dwellings to compete for development within this limited space.
Procedural Posture:
- Robert B. Surrick applied to the Board of Supervisors of Upper Providence Township to rezone a 12.25-acre tract to B-Business, which was denied after a hearing.
- Surrick then revised his plans to include his four acres and sought building permits, which were denied by the Building Inspector.
- Surrick appealed the denial to the Zoning Hearing Board of Upper Providence Township, requesting a variance and challenging the constitutionality of the ordinance; the Board held hearings and denied the requested variance.
- Surrick appealed the Board's denial to the Court of Common Pleas of Delaware County, which upheld the denial.
- Surrick then appealed to the Commonwealth Court, which affirmed the order of the Court of Common Pleas.
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Issue:
Does a zoning ordinance unconstitutionally exclude multi-family dwellings if it allocates a disproportionately small percentage of land (1.14%) to them, alongside numerous competing commercial uses, in a growing suburban community with significant undeveloped land?
Opinions:
Majority - Nix, Justice
Yes, the township's zoning ordinance unconstitutionally excludes multi-family dwellings. The Court reaffirms its substantive due process analysis for zoning ordinances, requiring them to bear a substantial relationship to the public welfare, and notes that exclusionary or unduly restrictive zoning techniques lack this relationship. Building on Willistown, Girsh, and National Land, the Court reiterated that suburban communities in the path of urban-suburban growth cannot establish residential enclaves by excluding population growth or different housing types. The Court explicitly adopts the "fair share" principle, which mandates that local political units plan for and provide land-use regulations that meet the legitimate housing needs of all categories of people who may desire to live within its boundaries, considering the municipality's and region's housing needs (citing Southern Burlington County NAACP v. Twp. of Mount Laurel). The Court applied an analytical framework focusing on the ordinance's exclusionary impact rather than intent. First, Upper Providence Township is a logical area for development due to its proximity to Philadelphia and main traffic arteries. Second, it is not a high-density area, with approximately one-quarter of its land undeveloped. Third, the zoning ordinance's provision of only 1.14% of township land for multi-family dwellings, which must compete with numerous other uses in an already substantially developed area, constitutes a partial, unconstitutional exclusion. This is disproportionately small given the growth pressure and available undeveloped land, rendering the ordinance legally indistinguishable from the "tokenism" invalidated in Willistown. Thus, Upper Providence Township failed to provide its "fair share" of land for multi-family dwellings. The Court directed zoning approval for Surrick's land and the issuance of a building permit, conditional on compliance with administrative requirements.
Concurring - Roberts, Justice
Yes, the Township’s allocation of land is clearly not reasonable, which is consistent with prior Pennsylvania cases like Concord Township Appeal, Girsh Appeal, National Land, and Township of Willistown. However, Justice Roberts explicitly rejects the majority’s adoption of the "fair share" principle, arguing that it has never commanded a majority of this Court and presents strong reasons not to endorse it. He contends that the "fair share" theory, particularly as derived from New Jersey’s Southern Burlington County NAACP v. Township of Mount Laurel, transforms courts into "super boards of adjustment" or "regional planning commissions." He cites New Jersey's experience with Mount Laurel and Oakwood at Madison as evidence of the "endless complications" and extensive judicial involvement in detailed planning and statistical analysis that such an approach entails, a role for which the judiciary is singularly ill-equipped and which properly belongs to legislative and administrative bodies. Justice Roberts believes that Pennsylvania's existing case law has proved adequate in preventing unconstitutional exclusionary zoning schemes without requiring such a vast expansion of zoning principles.
Concurring - Manderino, Justice
Justice Manderino concurred in the result.
Analysis:
This case significantly reinforces Pennsylvania's "fair share" doctrine by applying it to partial, rather than total, exclusion of multi-family dwellings. It clarifies that the focus of an exclusionary zoning challenge is on the impact of an ordinance, rather than the municipality's intent, placing an affirmative obligation on growing communities to provide for diverse housing needs. The decision limits a municipality's ability to use zoning as a tool to avoid the responsibilities and burdens associated with natural population growth, forcing them to balance local desires with regional housing demands. The vigorous concurrence highlights an ongoing judicial debate about the appropriate extent of judicial intervention in land-use planning, particularly the practical difficulties and scope creep inherent in implementing expansive doctrines like "fair share."
