Anti-Exclusionary Zoning in Pennsylvania: A Weapon for Developers, a Loss for Low-Income Pennsylvanians
Volume 80, No. 4, Winter 2007
By Katrin C. Rowan

In 1974, seven landowners proposed to develop several thousand units of apartments, townhouses, and mobile homes in Buckingham Township, an outer suburb of Philadelphia. The 1970 census indicated that Buckingham was home to only 5150 residents and 1609 housing units. The proposed housing would have increased the number of Buckingham’s housing units by over 500%. Wealthy and bucolic, Buckingham was just beginning to feel the pressure of increased development and trying to preserve its agricultural heritage. At the time, Buckingham’s zoning allowed for only single-family homes on minimum lot sizes of one acre, which would clearly prohibit the proposed development.

The landowners challenged the zoning under Pennsylvania’s developing exclusionary zoning case law, arguing that the zoning unconstitutionally excluded multifamily housing and mobile homes. Buckingham agreed that its zoning ordinance was unconstitutional under the new law and was in the process of developing a new, comprehensive zoning plan for the township. Buckingham enacted new, non-exclusionary zoning in 1975 and rejected the landowners’ applications for a curative amendment, filed to “cure” the former defective zoning. The landowners sued the township and won; the court held that the new zoning was not applicable to the case because the curative amendment was filed before the zoning changes were advertised. The court urged the landowners and the township to negotiate.

Today, on these parcels of land sit over one thousand single-family homes with values between $400,000 to $750,000, almost three hundred luxury townhouses worth over $400,000 each, and a desirable mobile-home park with monthly land rental costs of $400 and home values of approximately $200,000. Buckingham Township indeed heeded the suggestion of the court to negotiate and in doing so avoided most of the 8155 new households that would have resided in the proposed multifamily housing and mobile-home park. In Pennsylvania, a developer who successfully challenges exclusionary zoning is not required to build the housing type for which he sued, and the developer and municipality may negotiate for a more mutually desirable development. In Buckingham, the lawsuit, ostensibly to build housing for low- to moderate-income residents, resulted in expensive single-family homes, luxury townhouses, and an exclusive mobile-home community. This result hardly seems like a victory for affordable housing advocates.

This Comment argues that the great need for affordable housing is not being met under Pennsylvania’s unique anti-exclusionary zoning case law because the law focuses on property rights and land uses rather than classes of people and because developers manipulate the curative amendment process. Part II provides an overview of the intertwined affordable housing and exclusionary zoning problems, an explanation of various state approaches to exclusionary zoning, a description of the Pennsylvania case law, and a discussion of the “sue and switch” tactic used by developers in the Buckingham example above. Part III.A discusses the financial and planning burdens placed on municipalities by the misuse of curative amendments. Part III.B criticizes the fact that affordable housing has not effectively resulted from this process. Part III.C suggests that anti-exclusionary zoning efforts would be more successful in Pennsylvania if they focused on creating housing for a variety of classes of people rather than ensuring a variety of land uses. Finally, Part III.D provides several suggestions for change, including an end to the doctrine of definitive relief, promotion of inclusionary zoning practices, and the pursuit of smart growth policies to rein in sprawl and make both the cities and the suburbs more desirable and affordable places to live.

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