KRATZER v. BOARD OF SUP’RS, 148 Pa. Commw. 454 (1992)

611 A.2d 809

Commonwealth Court of Pennsylvania.Argued April 9, 1992.
Decided June 11, 1992.

Appeal from the Court of Common Pleas of Juniata County, No. 44 of 1991, Keith B. Quigley, President Judge.

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Randall E. Zimmerman, for appellants.

Andrew L. Winder, for appellee.

Before DOYLE and KELLEY, JJ., and LEDERER, Senior Judge.

DOYLE, Judge.

Robert E. Kratzer and Caroline Kratzer appeal an order of the Court of Common Pleas of Juniata County affirming an order of the Board of Supervisors of Fermanagh Township (Board) which denied the Kratzers’ request for a curative amendment to the Fermanagh Township zoning ordinance (Ordinance) pursuant to Section 609.1 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10609.1.[1]

The Kratzers own a parcel of land in the Township located in an “RA” or Rural Agricultural district. They seek to erect two two-family detached dwelling units on this property. The only residential uses permitted in the RA zone, however, are single-family detached dwellings and seasonal residences. Ordinance, Section 502.2.

In order to overcome this obstacle to construction, the Kratzers filed a substantive challenge and request for curative amendment with the Board on September 24, 1990. The

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Kratzers’ challenge alleged that the Ordinance, initially adopted on May 5, 1975, was constitutionally infirm in that it failed to provide for all basic forms of housing and was therefore facially exclusionary. Specifically, the Kratzers alleged that Section 604(4) of the MPC, 53 P. S. § 10604(4), provides that two-family dwellings are a basic, distinct and separate form of housing. Section 604 provides, inter alia, as follows:

The provisions of zoning ordinances shall be designed:

. . . .
(4) To provide for the use of land within the municipality for residential housing of various dwelling types encompassing all basic forms of housing, including single-family and two-family dwellings, and a reasonable range of multifamily dwellings in various arrangements . . . provided, however, that no zoning ordinance shall be deemed invalid for the failure to provide for any other specific dwelling type.

The Kratzers pointed out that, while the Ordinance defines both “Two-Family Detached” and “Two-Family Semi-Detached” dwellings, neither of these dwelling types are permitted either as of right or by special exception in any of the zoning districts established by the Ordinance. What is provided for in the zoning ordinance are “multi-family buildings” which are permitted in an R-2 Residential district; but “multifamily buildings” or “multifamily dwellings” are nowhere defined in the Ordinance. Thus, we have a use, not defined in the Ordinance, permitted as a special exception, and a type of dwelling arrangement defined in the Ordinance, but nowhere specifically permitted.

The issue presented before the Board was whether two-family dwellings are included within the term “multi-family buildings.” The Kratzers maintain that the term “multifamily buildings” does not include two-family dwellings and therefore, the Ordinance is defective because it fails to provide for two-family dwellings, a basic form of housing.[2] To remedy

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this alleged defect in the Ordinance, the Kratzers proposed a curative amendment which would allow Two-Family detached and Two-Family semi-detached dwellings as a permitted use in the RA zone where the Kratzers’ property is located.

After a hearing on November 28, 1990, the Board rejected the Kratzers’ challenge. The Board found that “multi-family buildings,” which were permitted in R-2 Residential zones as a special exception, include all dwelling units which house more than one family. Therefore, the Board concluded that two-Family dwellings were permitted as special exceptions within the R-2 districts, and thus, the Ordinance was not facially exclusionary.[3] The Kratzers appealed the Board’s order to the trial court which took no additional evidence. The trial court agreed that two-family dwellings were included within the term multi-family buildings and were thus provided for in R-2 Residential districts. This appeal followed.[4]

On appeal to this Court, the Kratzers raise essentially the same issues. First, they contend that the Ordinance is unconstitutional because it does not make any provision for two-family dwellings, that the Ordinance in fact prohibits two-family dwellings, and that the Board’s construction of the term multi-family is incorrect. The Kratzers’ second argument concerns the Ordinance’s provision for multi-family use as a

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special exception. They maintain that even if two-family dwellings can reasonably be considered as falling under the rubric of multi-family buildings, the Ordinance is still defective because it merely provides for these uses as a special exception rather than as a matter of right. Finally, the Kratzers contend that even if the Ordinance imposes only a partial exclusion of two-family dwellings, unde Fernley, the Board had the burden to prove that their restriction was a proper exercise of the police power and it failed to present any evidence in this regard.[5] We will address the Kratzers’ arguments seriatim.

The Kratzers’ first argument is based on the ambiguous nature of the Ordinance. As already stated, Section 302 of the Ordinance defines numerous dwelling types including “Two-Family Detached,” and “Two-Family Semi-Detached.” An examination of the various zoning districts provided for by the ordinance and the uses permitted therein reveals that neither of these dwelling types are mentioned. The only other reference to Two-family detached dwellings is contained in Section 504.5.b.(4), which details the lot area requirements for the R-2 Residential district. The Kratzers maintain that the failure of the Ordinance to provide expressly for two-family dwellings compels the conclusion that the Ordinance presents a de jure exclusion of two-family dwellings. We disagree.

The Kratzers admit that there is no specific prohibition of two-family dwellings, but they also maintain that Lower Gwynedd Township v. Provincial Investment Co., 39 Pa. Commw. 546, 395 A.2d 1055 (1979), holds that, in terms of exclusionary zoning, there is no material distinction between an ordinance which specifically prohibits a use and one which merely fails to provide for a use. The Kratzers would have us interpre Lower Gwynedd to mean that an ordinance which merely omits specific mention of a use is unconstitutional. This interpretation ignores subsequent case law and the

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extent of the inquiry engaged in the Lower Gwynedd case itself.

Lower Gwynedd held that an ordinance which fails entirely to provide for a needed and desired kind of residential use is exclusionary and as a consequence, unconstitutional. However, we have also stated that the fact that a zoning ordinance does not contain a specific provision addressing a proposed use is not, in and of itself, a basis for finding an unconstitutional exclusion of that use. Willits Woods Associates v. Zoning Board of Adjustment of the City of Philadelphia, 138 Pa. Commw. 62, 587 A.2d 827 (1991); see Appeal of Shore, 524 Pa. 436, 573 A.2d 1011 (1990). Where an ordinance does not mention a specific use, the inquiry must be carried further to determine whether the proposed use is included within another use that is specifically provided for. This is exactly what was done i Lower Gwynedd; after stating that an ordinance which failed to provide for a needed use is exclusionary, we went on to determine whether the proposed use (in that case townhouses) could possibly be included under the ordinance’s garden apartment or apartment districts. It is to such an inquiry that we now turn.

When a proposed use can be considered within another zoning classification or, where a zoning ordinance is broad enough to encompass the proposed use, there is no de jure exclusion Appeal of M.A. Kravitz Co., Inc., 501 Pa. 200, 460 A.2d 1075
(1983); Willits Woods Associates. While the Ordinance does not specifically provide for two-family dwellings, Section 504.3.d. of the Ordinance does allow the construction of “multi-family buildings” as a special exception in R-2 Residential districts. Although the term “multi-family buildings” is not defined within the Ordinance, we agree with the Board’s construction of the term and conclude that two-family dwellings are included and subsumed within the term “multifamily buildings” in this Ordinance.

We are compelled to this conclusion for a number of reasons. First, we note that when interpreting the language of a zoning ordinance, we are required to interpret the language in

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favor of the property owner and against any implied restriction where doubt exists as to the intended meaning of the governing body. Section 603.1 of the MPC, 53 P. S. § 10603.1. In addition, in accordance with the dictates of the rules of statutory construction,[6] we are required to interpret an ordinance, if possible, in a manner which will not violate the federal or state constitutions. See Section 1922(3) of the Statutory Construction Act of 1972 (Act), 1 Pa. C.S. § 1922(3). Finally, where a term in a zoning ordinance is undefined, the term must be given its usual and ordinary meaning. Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 139 Pa. Commw. 206, 590 A.2d 65 (1991). Here, in light of the Ordinance itself, we believe that the intent of the governing body is not in doubt, and that it meant to include two-family dwellings within the purview of the term multi-family buildings.

The fact that the Ordinance defines two-family dwellings indicates that the governing body intended to allow such a use. This reference is obviously not inadvertent as the Ordinance specifically defines not just one, but two types of two-family dwellings.[7] More revealing is the fact that the Ordinance provides set-back and area specifications for two-family detached dwellings in the section of the Ordinance concerning R-2 Residential Districts. It is clearly more than coincidental that the R-2 Residential district is also the one, and only, district which allows multi-family buildings.

Also instructive is the manner in which the Ordinance treats other uses which, under any definition, would clearly be

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considered multi-family uses. Section 302 of the Ordinance contains definitions of “Garden Apartments” and “Apartment House” under the heading of dwelling types.[8] As with two-family dwellings, however, Garden Apartments and Apartment Houses are not specifically mentioned as permitted uses or as uses permitted by special exception in any district. The only district in which they could possibly be allowed would be the R-2 Residential district which allows multi-family buildings as special exceptions. Thus, the Ordinance provides for two-family dwellings and for apartment dwellings in an identical fashion; neither type of dwelling, with its bifurcated subclasses, is a specific permitted use in any zoning district, yet each would be a permitted use by special exception under the umbrella term “multi-family” dwelling or “multi-family” building in the R-2 district.

It is inconceivable that the governing body of the Township would provide detailed definitions of these several uses and yet fail to provide at least one district in which they could legally exist. Such an interpretation would produce an absurd and unconstitutional result, contrary to the rules of statutory construction, see Cooley; Section 1922(1) of the Act, 1 Pa. C.S. § 1922(1). Moreover, construing multi-family buildings to include two-family dwellings gives the term one of its usual and ordinary meanings.[9]

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Accordingly, we conclude that the term “multi-family buildings” used in Section 504.3(d) of the Ordinance includes “Two-Family Detached” and “Two-Family Semi-Detached” uses, terms defined in Section 302 of the Ordinance. The Ordinance is not, therefore, facially exclusionary of two-family residential uses.

We now turn to the Kratzers’ second argument. The Kratzers maintain that even if two-family uses are permitted as special exceptions, this is not sufficient; the Ordinance must provide for two-family uses as a matter of right to pass constitutional muster.

A use allowed by special exception is a permitted use. Kulak v. Zoning Hearing Board of Bristol Township, 128 Pa. Commw. 457, 563 A.2d 978 (1989). We have held numerous times in the past that an ordinance which allows a use conditionally, as by special exception, is not de jure exclusionary. See Hersh v. Zoning Hearing Board of Marlborough Township, 90 Pa. Commw. 15, 493 A.2d 807 (1985); New Bethlehem Borough Council v. McVay, 78 Pa. Commw. 167, 467 A.2d 395 (1983) (zoning ordinance satisfies municipality’s fair share of required use by making use available by conditional use or special exception); Zajac v. Zoning Hearing Board of Mifflin Township,

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41 Pa. Commw. 7, 398 A.2d 244 (1979). The Kratzers suggest no reason why these precedents should be ignored now, and we decline to do so.

Finally, the Kratzers contend that even if the Ordinance is not facially exclusionary, it does work a partial exclusion, and the Township failed to prove that this exclusion is a proper exercise of the police power. Thus, they maintain that the Ordinance is unconstitutional. This argument is based on our Supreme Court’s decision in Fernley, which the Kratzers interpret as standing “for the proposition that if a zoning ordinance is found to partially exclude a certain use, then it is incumbent on the Township to prove that this restriction on the use of land is a proper exercise of the police power.” Appellants Brief at 11.

This, of course, is a misreading of Fernley which merely reiterated prior case law where the burden of proof in an exclusionary zoning case is concerned. Fernley held that the party challenging an ordinance has the burden of proving that the ordinance is constitutionally invalid. 509 Pa. at 418, 502 A.2d at 587. The burden of proof shifts to the municipality only when the challenger has shown a total prohibition of a legitimate use. Id.

Therefore, the burden of proof in the instant case was properly on the Kratzers. In order to meet their burden of showing a partial or de facto exclusion, the Kratzers were required to introduce evidence showing that the provision for two-family dwellings in the Ordinance does not reasonably accommodate the immediate and projected demand for that use See Surrick. The Kratzers failed to present any evidence on this issue, and thus, did not meet their burden.

Accordingly, the order of the trial court is affirmed.

ORDER
NOW, June 11, 1992, the order of the Court of Common Pleas of Juniata County in the above-captioned matter is affirmed.

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