       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

KS Development Company, L.P. and    :
KS Development Company 2, L.P.      :
                                    :
            v.                      : No. 2302 C.D. 2015
                                    : Argued: June 6, 2016
Lower Nazareth Township and         :
AAA of Northampton County and       :
Robert and Beverly Hoyer and        :
Woodmont Properties, LLC            :
                                    :
Appeal of: Woodmont Properties, LLC :


KS Development Company, L.P. and     :
KS Development Company 2, L.P.,      :
                Appellants           :
                                     :
            v.                       : No. 2312 C.D. 2015
                                     : Argued: June 6, 2016
Lower Nazareth Township and          :
AAA of Northampton,                  :
Robert and Beverly Hoyer,            :
Wind-Drift Real Estate Associates,   :
Woodmont Properties                  :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY
SENIOR JUDGE COLINS                               FILED: October 26, 2016

            In these consolidated appeals, KS Development Company, L.P. and
KS Development Company 2, L.P. (collectively KS Development), and Woodmont
Properties, LLC (Woodmont), seek to reverse the October 23, 2015 order of the
Court of Common Pleas of Northampton County (Trial Court) affirming the
January 14, 2015 decision and order of the Lower Nazareth Township Board of
Supervisors (Board), which denied KS Development’s request for a curative
amendment1 to the Lower Nazareth Township Zoning Ordinance (Ordinance).
               Before this Court, KS Development and Woodmont argue that the
Ordinance totally excludes apartments as a permitted use within Lower Nazareth
Township (Township) and that, in the alternative, the Ordinance fails to
accommodate for the Township’s fair share of multi-family housing.                             KS
Development and Woodmont2 each seek to cure the alleged constitutional defect in
the Ordinance with amendments that would permit construction of apartments in
the Office Park District (OP District), however, the restrictions each amendment
places on apartment use within the OP District differ. For the reasons that follow,
we affirm the order of the Trial Court.3

1
  See Sections 916.1, 909.1, and 609.1 of the Municipalities Planning Code (MPC), Act of July
31, 1968, P.L. 805, as amended, added by Act of December 21, 1988, P.L. 1329, 53 P.S. §§
10916.1, 10909.1, 10609.1 (providing procedures by which an aggrieved landowner may bring a
challenge to the validity of an ordinance and seek a curative amendment before a township’s
governing body); see also H.R. Miller, Co. Inc. v. Board of Supervisors, 605 A.2d 321 (Pa. 1992)
(discussing the relief available to an aggrieved landowner challenging the validity of an
ordinance and distinguishing the constitutional infirmity that must be remedied by site specific
relief from those ordinances that may be saved by applying the rule of severability); Casey v.
Zoning Hearing Board of Warwick Township, 328 A.2d 464, 468 (Pa. 1974) (discussing the
remedy of site specific curative amendments).
2
  Woodmont is an Intervenor-Appellant in this matter. AAA of Northampton County, Robert
and Beverly Hoyer and Wind-Drift Real Estate Associates are Intervenor-Appellees. For
simplicity, this opinion will refer to all arguments in favor of reversing the Trial Court’s order
and granting a curative amendment as arguments made by KS Development and all arguments in
support of affirming the Trial Court’s order as arguments made by the Appellees.
3
  A zoning ordinance limiting a landowner’s absolute right to use private property is a valid
exercise of a township’s police power when it promotes the public health, safety or welfare, and
its provisions are substantially related to the purpose the ordinance purports to serve. Cleaver v.
Board of Adjustment of Tredyffrin Township, 200 A.2d 408, 411- 412 (Pa. 1964). A party
challenging the constitutionality of a zoning ordinance bears the burden to demonstrate that the
ordinance is infirm and must establish that it is arbitrary, unreasonable and unrelated to public
health, safety, morals and general welfare; in determining whether the challenged ordinance is a
valid exercise of the police power, the reasonableness of the restriction must be weighed against
its confiscatory or exclusionary impact. C & M Developers, Inc. v. Bedminster Township Zoning
Hearing Board, 820 A.2d 143, 151 (Pa. 2002).
                                                2
              In the seminal case Surrick v. Zoning Hearing Board of the Township
of Upper Providence, 382 A.2d 105 (Pa. 1978), our Supreme Court fashioned an
analytical framework to guide the courts in distinguishing between townships
engaged in good faith planning and townships that sought to design zoning
ordinances to exclude specific classes of housing within their borders.4 See also
Appeal of Girsh, 263 A.2d 395, 399 & n.4 (Pa. 1970) (“Municipal services must be
provided somewhere, and if [the township] is a logical place for development to
take place, it should not be heard to say that it will not bear its rightful part of the
burden.”); National Land and Investment Co. v. Kohn, 215 A.2d 597, 610 (Pa.
1965) (“Zoning is a means by which a governmental body can plan for the
future—it may not be used as a means to deny the future.”).
              Pursuant to Surrick, where a challenge to a zoning ordinance alleges
that the ordinance effects a de facto or partial exclusion of a class of housing, the
courts employ a three-part test to determine the constitutionality of the zoning
ordinance. The first step is to determine whether the community is in the path of
growth and in a logical place for growth and development. Surrick, 382 A.2d at
108-109; see also BAC, Inc. v. Board of Supervisors of Millcreek Township, 633
A.2d 144, 147 (Pa. 1993). Factors to consider in analyzing whether the community
is in the path of growth include: (1) projected population growth; (2) anticipated
economic development; (3) access by major roads or public transportation; (4) the
growth and development of neighboring municipalities; (5) proximity to a large

4
  The Court held in Surrick, when the issue under review is whether a zoning ordinance utilizes
exclusionary or unduly restrictive regulations to exclude a class of housing, the analysis falls
within the broader confines of a substantive due process analysis pursuant to the Fifth and
Fourteenth Amendments to the United States Constitution and in keeping with Article 1, Section
1 of the Pennsylvania Constitution. Surrick, 382 A.2d at 108. If a zoning ordinance is found to
utilize exclusionary or unduly restrictive zoning regulations, it necessarily follows that the
ordinance does not have the requisite substantial relationship to the public welfare and will not
pass constitutional muster. Id.
                                               3
metropolitan area; and (6) attempts by developers to obtain permission to build.
Surrick, 382 A.2d at 111-112; Heritage Building Group, Inc. v. Bedminster
Township Board of Supervisors, 742 A.2d 708, 711 (Pa. Cmwlth. 1999).
            When it is demonstrated that a community is in the path of growth, the
second step in the Surrick analysis is to determine the level of development in the
area. 382 A.2d at 110. Factors to consider at this stage of the Surrick analysis
include the municipality’s population density data, its percentage of total
undeveloped land and the percentage of its land available for the class of housing
alleged to be unconstitutionally constrained. BAC, 633 A.2d at 146-147; New
Bethlehem Borough Council v. McVay, 467 A.2d 395, 398 (Pa. Cmwlth. 1983).
            If it is determined that the community is situated in the path of
population expansion and is not already highly developed, then the final stage of
the analysis asks whether the municipality has provided for its “fair share” of land
for the class of housing under consideration. Surrick, 382 A.2d at 10-11; Precision
Equities, Inc. v. Franklin Park Borough Zoning Hearing Board, 646 A.2d 756,
759-760 (Pa. Cmwlth. 1994).
            In analyzing whether a de facto exclusion of a class of housing exists
within the challenged zoning ordinance, the Surrick test does not replace but works
in conjunction with the presumption that a zoning ordinance is constitutional and
imposes a heavy burden upon the party who seeks to challenge its validity. 382
A.2d at 112 n.13; National Land, 215 A.2d at 607; Montgomery Crossing
Associates v. Township of Lower Gwynedd, 758 A.2d 285, 287 (Pa. Cmwlth.
2000). The presumption of constitutionality, however, is just that—a presumption.
This presumption is rebuttable where the burdened party presents substantial
evidence of the exclusionary nature of the challenged zoning restrictions. BAC,



                                         4
633 A.2d at 147 & 148; Surrick, 382 A.2d at 112 n.13; National Land, 215 A.2d at
607.
               In the instant matter, KS Development relies on the Surrick analysis
only in the alternative, arguing instead that the Township’s zoning ordinance
effects a de jure, or total, exclusion of apartments as a residential use rather than
the de facto exclusion at issue in Surrick and its progeny.
               KS Development concedes that, on its face, the Ordinance provides
for apartments by right in the Medium Density Residential District (MDR District).
Ordinance § 702(A)(9)(b). In addition to the MDR District, the Appellees contend
that apartments are permitted in the Planned Industrial Commercial District (PIC
District) and the Mixed-Use Overlay Light Industrial District (Mixed-Use
Overlay). The Appellees’ argument is premised on the contention that a personal
care center, life care center, and a retirement village can all be considered
“apartments,” as that term is defined in the ordinance. The Appellees’ argument
strains credulity and belies the plain meaning and structure of the Ordinance.5
               The term “dwelling” is defined in the Ordinance as, “[a] building used
as non-transient living quarters. The term ‘dwelling’ shall not include boarding
house, hotel, motel, hospital, nursing home, fraternity, sorority house or any group
residence.” Ordinance § 202. Apartments are listed within the Ordinance as one
category of “dwelling,” in addition to “modular home” and “single family detached
dwelling,” which includes mobile/manufactured homes, single family semi-
detached dwelling, townhouse, and two-family detached dwelling.                                 Id.


5
  The Statutory Construction Act, 1 Pa. C.S. §§ 1501-1991, is equally applicable to the
interpretation of local ordinances and, of particular note in the instant matter, mandate that every
ordinance “shall be construed, if possible, to give effect to all its provisions,” that “when words
of the [ordinance] are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit,” and that specific provisions control over more general
ones. 1 Pa. C.S. §§ 1921(a) & (b), 1933.
                                                 5
Apartments are specifically defined within the Ordinance as “[t]hree or more
dwelling units within a building. The individual dwelling units may be leased or
sold for condominium ownership.” Id. The Ordinance also defines the term
“dwelling unit,” providing:


             One dwelling occupied by only one family and a
             maximum of 2 persons who clearly function and are
             employed as domestic employees….Each dwelling unit
             shall have its own sanitary, sleeping and cooking
             facilities and separate access to the outside or to a
             common hallway or balcony that connects to outside
             access at ground level. A dwelling unit shall not include
             either or both of the following: a) two or more separate
             living areas that are completely separated by interior
             walls so as to prevent interior access from one living area
             to another, or b) two separate and distinct set of kitchen
             facilities.


Id. The Appellees contend 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, it is clear that under the Ordinance the presence
of a “dwelling unit” does not mean that the use permitted is a “dwelling” and it is
equally clear that “apartments” are “dwellings” whereas personal care centers, life
care centers, and retirement villages are not “dwellings,” but separately defined
categories of use that contain residential features.
             A “personal care center” is defined in the Ordinance as “[a] residential
use providing residential and support services primarily to persons over age 60
and/or disabled and that is licensed by the Commonwealth of Pennsylvania.” Id.
A “life care center” is defined in the Ordinance as “[a] residential use designed and

                                           6
operated exclusively for adults of 55 years of age or older and/or disabled persons
that includes a nursing home[6] and certain limited support facilities intended
specifically to serve the needs of these residents.” Id. Finally, a “retirement
village” is defined in the Ordinance as “[a] residential development limited
exclusively to persons aged 55 years and older and their spouses.” Id.
                 Each of these uses contains restrictions which make the use a use
other than that specifically defined as an apartment. None of these uses are listed
as a category of dwelling.            Unlike the category of “single family detached
dwelling” found within the larger definition of dwelling, apartments are not further
defined with subcategories that apply greater restrictions to the definition; for
example, a “townhouse” is defined as one category of “single family detached
dwellings” and requires “[o]ne dwelling unit that is attached to 2 or more dwelling
units, and with each dwelling unit being completely separated from each other by
vertical fire resistant walls. Each dwelling unit shall have its own outside access.
Side yards shall be adjacent to each end unit. Townhouses are also commonly
referred to as row houses.” Id. Instead of being defined as a type of apartment,
like the Ordinance defines townhouses as a type of single family detached
dwellings, the terms life care center, personal care center, and retirement village
are all separately defined in the Ordinance’s definitions section and delineated
throughout the Ordinance where the Ordinance identifies uses permitted in each
zoning district. Id.; see also Ordinance § 1002 (providing for uses permitted by
right in the PIC District).
                 Therefore, we reject the Appellees’ argument that the Ordinance’s
provision for personal care homes, life care centers, and retirement villages must
be considered in evaluating whether the Ordinance provides for apartments.

6
    The definition of “dwelling” specifically excludes a “nursing home.” Ordinance § 202.
                                                 7
However, KS Development’s argument that the Mixed-Use Overlay does not
permit apartments is equally unpersuasive. The Mixed-Use Overlay permits as a
use “residential multi family/apartment dwelling on the uppers floors of a three,
four or five story mixed use building,” but does not allow residential uses on the
ground floor of any building. Ordinance § 1110(D)(1) & (11). Apartments are
clearly permitted in the Mixed-Use Overlay by the plain text of the Ordinance.
The apartment use is not transformed into a use other than apartments by the
requirement that the first floor of a building housing apartments contain a non-
residential use; the colocation of uses does not redefine what uses are permitted
within a district but regulates the density and configuration of the development of
uses within a particular district. Compare Montgomery Crossing Associates, 758
A.2d at 287 (“We have long held that ‘a shopping center constitutes simply a
particular configuration of commercial uses, rather than a separate land use
category in itself.’ Therefore, although [appellant] seeks to erect a shopping center,
its specific challenge is not that there is a ban on shopping centers, but rather on
certain types of commercial uses that might conceivably occupy a shopping
center.”) (internal citations omitted).
             KS Development argues that the facial allowance for apartments in
the MDR District and the Mixed-Use Overlay does not negate the argument that
the Township’s zoning scheme affects a de jure exclusion of apartments because
the use is subject to stringent restrictions, including limited gross density and large
set asides, that render the actual development of apartments economically
infeasible. This argument, however, conflates a de jure and a de facto challenge to
an ordinance.
             If an ordinance totally excludes a particular use, such as mobile homes
or billboards, then the ordinance is de jure exclusionary; if an ordinance provides

                                          8
for a particular use but applies additional restrictions on the use that have the effect
of excluding or making provision of the use illusory, than the ordinance is de facto
exclusionary. See, e.g. Township of Exeter v. Zoning Hearing Board of Exeter
Township, 962 A.2d 653, 659 (Pa. 2009) (holding that a 25 square-foot size
limitation on signs permitted in the commercial and industrial zoning districts
constituted a de facto exclusion of billboards); Atiyeh v. Board of Commissioners
of Township of Bethlehem, 41 A.3d 232, 236-237 (Pa. Cmwlth. 2012) (holding that
an ordinance which fails to specifically provide for a “prison” use or to encompass
that use within another use is de jure exclusionary); Stahl v. Upper Southampton
Township Zoning Hearing Board, 606 A.2d 960 (Pa. Cmwlth. 1992) (holding that
restrictions placed on the density of mobile home parks rendered the use
economically infeasible and the provision of that use within the ordinance illusory,
constituting a de facto exclusion of the mobile home use).
             The Ordinance provides for apartments in the MDR and Mixed Use
Overlay Districts. Therefore, the Ordinance is not de jure exclusionary. See, e.g.,
Board of Supervisors of Northampton Township v. Gentsch, 414 A.2d 1102, 1105
(Pa. Cmwlth. 1980) (“That a specific type of apartment structure is not permitted in
no way allows the inference that the township improperly excludes a lawful use of
property.”) (internal citations omitted); see also Upper Salford Township v.
Collins, 669 A.2d 335, 337 (Pa. 1995). Accordingly, the issue before this Court is
whether the Ordinance deprived KS Development of its constitutionally protected
property interest without due process of law by effecting a de facto exclusion of
apartments as a use within the Township.
             KS Development contends that the Surrick test does not provide the
proper analysis for resolution of the issue before this Court.            Instead, KS
Development contends that the substantive due process analysis applicable where

                                           9
an ordinance effects a de facto exclusion of a use controls because the issue is not
whether the Ordinance provides for its “fair share” of apartments as a class of
housing but whether the provision of apartments as a use on the face of the
Ordinance is illusory when all the additional limitations imposed by the Ordinance
on the apartment use are applied to the areas within the Township zoned for
apartment use. We agree, in part.
            In Stahl, this Court recognized that “[t]heoretically, a municipality
could comply with its fair share responsibility and nevertheless indirectly preclude
development of a type of housing by adopting restrictive dimensional
requirements.” 606 A.2d at 965. We held that where the property at issue can be
reasonably used for the purposes required by the ordinance, the property owner
could not legally complain because the ordinance prevented the owner from
devoting the property to its most lucrative and profitable use; however, where the
ordinance, through its particular requirements, made development of the permitted
use economically impossible, then the municipality had precluded a legitimate use
by indirect means and the ordinance was unconstitutional. Id. at 967. Applying
this holding to the facts at issue in Stahl, we concluded that the ordinance
impermissibly restricted the dimensional and density requirements for mobile
home parks within the zoning district where the mobile home park use was
permitted and that the unduly restrictive application of the ordinance effected a de
facto exclusion of the mobile home use within the township. Id. The issue was not
whether the township provided land for a class of housing in an amount sufficient
for the growth and development of the township but whether it did so in a way that
prevented that class of housing from ever being developed. Compare H.R. Miller
Co., Inc. v. Board of Supervisors of Lancaster Township, 605 A.2d 321, 325-326
(Pa. 1992) (ordinance permitting quarrying in industrial zone was illusory because

                                        10
500-foot setback made quarrying operations physically and economically
impossible).
               The abiding concern of Stahl is the distinction present not simply
between de jure and de facto exclusionary challenges to an ordinance but also
between the two types of de facto challenges to the constitutionality of an
ordinance. See Township of Exeter, 962 A.2d at 659 & n.5. A de facto challenge
to an ordinance regulating a residential use may be based on either the amount of
land made available for a class of residential uses, or on the inability to develop the
residential use on land provided in a sufficient amount for that class of use because
of unduly restrictive conditions on development, or on both bases.            Id. The
difficulty in de facto exclusionary challenges when both arguments are presented is
that the evidence for each often runs together, may at times intersect, and therefore
the challenges may be improperly conjoined.
               In the instant matter, the Board applied the Surrick analysis and
determined that the Township was within the path of growth and highly developed.
(Board Op. at 3.) The Trial Court reached the same conclusion, noting that what
distinguished the analysis of growth within the Township by KS Development’s
expert, Martin Gilchrist, from the analysis of Appellees’ expert, Terry DeGroot, is
that KS Development’s expert failed to treat active agricultural uses as developed
land. (Trial Court Op. at 8.) Neither the Board nor the Trial Court addressed the
third prong of the Surrick analysis—whether the municipality has provided for its
“fair share” of land for apartments—because KS Development had failed to satisfy
the second prong of the analysis by showing that the Township was
underdeveloped.
               We agree with the Trial Court that an analysis of the level of
development in a township pursuant to the second prong of Surrick, which is

                                          11
informed by examining the percentage of total undeveloped land and the
percentage of land available for the class of housing alleged to be
unconstitutionally excluded, lacks persuasive value when the analysis treats areas
zoned for agricultural use and actively used for agricultural purposes as
undeveloped. The MPC permits communities to enact ordinances protecting and
promoting agricultural uses of land and identifies the protection and promotion of
agricultural land and uses as one of the purposes of zoning in the Commonwealth.
See Sections 603 & 604 of the MPC, 52 P.S. §§ 10603, 10604. This Court has
held that land used for active agricultural and agricultural-related purposes is
properly considered to be developed land for purposes of the second prong of the
Surrick test. Heritage Building Group, Inc. v. Plumstead Township Board of
Supervisors, 833 A.2d 1205, 1210 (Pa. Cmwlth. 2003). 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. Therefore, we conclude 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 under Surrick.
            In support of its legal arguments, KS Development produced a large
volume of evidence to demonstrate that the land zoned for development of
apartments within the Township was inadequate to support the Township’s fair
share of apartments. However, as discussed above, KS Development was unable
to show that the Township was underdeveloped, and therefore it was unnecessary
for the Board and the Trial Court to examine the evidence in regard to the third
prong of the Surrick test.       Nevertheless, the evidence produced by KS
Development in support of its argument that the Township’s Ordinance worked to

                                       12
exclude its fair share of apartment housing bears upon KS Development’s
argument that the Ordinance renders development of apartments economically
infeasible through gross density, set asides, and other requirements and is,
therefore still de facto exclusionary.
              In the MDR District, in addition to lot and setback requirements
common to all uses, the Ordinance requires 5 acres as the minimum tract area for
use of a property for apartments and that no more than 15% of the tract area be
used for apartments. Ordinance § 706(A). The Ordinance also imposes common
open space requirements that become increasingly restrictive based on the amount
of dwelling units contained in a development:


             Common open space shall be suitable for active
             recreation. Suitable for active recreation shall mean
             contiguous, and at least 75% of the open space having
             slopes of less than 10 percent and planted in grass and
             trees. For each 25 dwelling units, part of this area shall
             be graded to less than 4 percent slope to form at least 1
             rectangular field of at least 300 feet in length and 100
             feet in width.


Ordinance § 706(H)(3). KS Development presented testimony demonstrating that
together these restrictions render the economics of developing apartment
complexes within the Township infeasible. Despite this evidence, the Board found
that:


             Based upon the presentations of [KS Development, its]
             witnesses and counsel, [Appellees], their witnesses and
             counsel, and the testimony of residents and citizens of the
             [Township], the [Board] finds that the [Township]
             Ordinance does not prohibit or restrict the use or
             development of [KS Development’s] subject property.

                                         13
              The [Board] finds that the averments suggesting the
              Zoning Ordinance is unduly restrictive, confiscatory,
              unlawfully restricts the development of apartments
              within the Township, and unlawfully restricts
              development of a reasonable range of multifamily
              dwellings in various arrangements within the Township
              are without merit.


(Board Op. at 2.) The Board’s findings, as affirmed by the Trial Court, have
support in both law and fact; although KS Development produced evidence
showing that developing apartment complexes in accordance with the Ordinance
was economically infeasible, this was not KS Development’s burden. Instead, in
order to carry its burden to demonstrate that the Ordinance is unconstitutional
because it is de facto exclusionary, KS Development had to demonstrate that the
development of apartments was economically infeasible.
              Where a de facto challenge is brought against an ordinance based
upon economic infeasibility rather than a township’s failure to account for its fair
share of housing, the evidence must account for basic legal principles governing
exclusionary challenges.         First, an ordinance may regulate the type and
configuration of a use once it has provided for that use; limitations on the level of
density permitted for the use, standing alone, do not establish that the ordinance is
exclusionary. Appeal of Girsh, 263 A.2d at 245; Gentsch, 414 A.2d at 460;
Benham v. Board of Supervisors of Middletown Township, 349 A.2d 484, 487-489
(Pa. Cmwlth. 1975). Second, where an ordinance has zoned sufficient land for a
use but that land has been saturated by other uses, the inability to develop land
does not amount to an unconstitutional prohibition of the use.7 Overstreet v.

7
  The exception of course being, as held in Stahl, where land within a township was zoned to
include the use only after the saturation of other uses rendered development of the newly zoned
use infeasible. 606 A.2d at 963.

                                              14
Zoning Board of Schuykill Township, 618 A.2d 1108, 1115 (Pa. Cmwlth. 1992);
Appeal of Groff, 274 A.2d 574, 575 (Pa. Cmwlth. 1971). Third, an ordinance will
not be found unconstitutional merely because it deprives the owner of the most
lucrative and profitable uses; as long as the property in question may be reasonably
used for the purposes permitted under the ordinance, the owner may not legally
complain. Smith v. Hanover Zoning Hearing Board, 78 A.3d 1212, 1219 (Pa.
Cmwlth. 2013); Montgomery Crossing, 758 A.2d at 290; Kirk v. Zoning Hearing
Board of Honey Brook Township, 713 A.2d 1226, 1231 (Pa. Cmwlth. 1998).
Finally, the fact that an ordinance applies a significant amount of restrictions to
development of a particular use, standing alone, is insufficient to show that the
ordinance is arbitrary, unreasonable and lacking a substantial relationship to the
public health, safety and welfare; instead, evidence must be produced to
demonstrate that the restrictions lack a legitimate purpose. Keinath v. Township of
Edgmont, 964 A.2d 458, 462 (Pa. Cmwlth. 2009); McGonigle v. Lower Heidelberg
Township Zoning Board, 858 A.2d 663, 669 (Pa. Cmwlth. 2004); Hock v. Board of
Supervisors of Mount Pleasant Township, 622 A.2d 431, 434 (Pa. Cmwlth. 1993)
(examining the reasonableness of the ordinance by determining whether the
restriction imposed serves the stated purpose of the ordinance and whether the
purpose could be achieved by less restrictive means).8

8
    See also In re Petition of Dolington Land Group, 839 A.2d 1021 (Pa. 2003):

                 In the period since our decision in Surrick, factors previously of
                 little or no concern have assumed preeminence. These include but
                 are not limited to an increased awareness of the environmental
                 sensitivity and public value of undisturbed wetlands, floodplains,
                 slopes, and woodlands; the growing national and state-wide
                 awareness of the true costs of sprawl and of the need to implement
                 contrary land use policies; and the growing recognition of the
                 importance of agricultural lands and activities and of prime
                 agricultural soils. Each of these factors acts to counterbalance to
                 some extent the desire for intense development and each of these
                                                 15
              The evidence presented by KS Development failed to distinguish
between the provision of a use and the provision for a host of variations on the
configuration of that use, failed to show that any lack of development of the
apartment use within the Township was due to the Ordinance rather than the
development of other uses where apartments were permitted, and failed to
demonstrate that the Ordinance rendered development of apartments within the
Township infeasible rather than simply prevented development of apartments in a
manner that would provide KS Development with the most profitable use of land.
Finally, and most important, KS Development did not demonstrate that the
restrictions placed on the development of apartments within the Township’s MDR
and Multi-Use Overlay Districts were unreasonable and inconsistent with the
stated purpose of those districts.9 While it is clear from the plain text of the
Ordinance that the development of apartments within the Township is highly
regulated, the Township’s intensive restrictions on the manner in which apartments
are developed was not shown to be unreasonable and unrelated to public health,
safety, morals and general welfare. Therefore, we conclude the Trial Court did not
err in affirming the Board’s conclusion that KS Development’s challenge to the


              factors can properly serve in an appropriate municipal or
              multimunicipal context as a legitimate justification for the
              imposition of carefully tailored restrictions of the type, design,
              location, and intensity of permitted development.

Id. at 1032-1033.
9
  See Ordinance § 701 (MDR District) (“Purpose. To provide for a variety of carefully designed
housing types at medium densities. To make sure that varied housing types are compatible with
any existing single family detached houses. To make sure the street system of the Township and
other community facilities and services are fully able to handle moderately dense growth in an
area. To work to encourage affordable housing, especially for young families and senior
citizens. To encourage these areas to be developed for townhouses and apartments only after
both public water and sewer service is available.”); Ordinance § 1110 (Mixed-Use Overlay
District Purpose); see also Ordinance § 101 (Purposes and Objectives of Ordinance).
                                             16
Ordinance as unduly restrictive of the development of various arrangements of
multi-family dwellings was without merit.
             Accordingly, we hold that the Ordinance is not de jure or de facto
exclusionary because the Township has provided for its fair share of apartment
housing and has not used other restrictions within the Ordinance to render the
development of apartments an illusory or economically infeasible prospect. Our
holding is based on the evidence presented in support of KS Development’s
request for a curative amendment to construct apartments within the OP District,
rather than the Ordinance as applied to a property within the area zoned for
apartment use, and on the evidence of the growth and development of the
Township as currently reflected in the record.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




Judge Covey did not participate in the decision in this case.




                                         17
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


KS Development Company, L.P. and    :
KS Development Company 2, L.P.      :
                                    :
            v.                      : No. 2302 C.D. 2015
                                    :
Lower Nazareth Township and         :
AAA of Northampton County and       :
Robert and Beverly Hoyer and        :
Woodmont Properties, LLC            :
                                    :
Appeal of: Woodmont Properties, LLC :


KS Development Company, L.P. and        :
KS Development Company 2, L.P.,         :
                Appellants              :
                                        :
            v.                          : No. 2312 C.D. 2015
                                        :
Lower Nazareth Township and             :
AAA of Northampton,                     :
Robert and Beverly Hoyer,               :
Wind-Drift Real Estate Associates,      :
Woodmont Properties
                                     ORDER


            AND NOW this 26th day of October, 2016, the October 23, 2015
order of the Court of Common Pleas of Northampton County in the above-
captioned consolidated matters is AFFIRMED.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge
