Daily Development for Wednesday, January 14, 2004 
by: Patrick A. Randolph, Jr. 
Elmer F. Pierson Professor of Law 
UMKC School of Law 
Of Counsel: Blackwell Sanders Peper Martin 
Kansas City, Missouri 
dirt@umkc.edu 
Today's DD is taken largely from the excellent "Real Estate Update" 
Newsletter of the Blank Rome in Philadelphia, Pennsylvania. 
ZONING AND LAND USE; EXCLUSIONARY ZONING: 
Pennsylvania Supreme Court Sets standards for minimum lot size 
ordinances, strikes down "Agricultural Preservation" zoning scheme. 
C & M Developers, Inc. v. Bedminster Township Zoning Hearing 
Board, No. 171 MAP, 820 A. 2d 143 (Pa. Supreme Crt. November 1, 
2002). 
The Pennsylvania Supreme Court has ruled that a Bedminster Township 
ordinance regulating lot sizes was unconstitutional because it was not 
substantially related to the Township's general welfare interest in 
preserving its agricultural lands and activities. 
The ordinance provided that landowners of a tract containing 10 acres or 
less may subdivide into lots of 80,000 square feet, while owners of more 
than 10 acres cannot subdivide without soil analysis and, then may only 
develop parts of the tract in lots of at least one contiguous acre. The 
stated purpose of the ordinance was to preserve prime agriculture and 
farmland and to provide for the orderly development of the Community." 
The ordinance: (1) established an Agricultural Preservation District 
which covers approximately 90% of the Township, and (2) eliminated 
two residentially zoned districts, which had allowed for development of 
single-family detached dwellings on lots of 80,000 square feet, and (3) 
eliminated a scenic district, which had allowed for the development of 
single-family detached dwellings on two-acre minimum lots. The 
ordinance also provided for the expansion of the R-3 Residential District, 
as a means of accommodating future needs for development of homes. 
In the Agricultural Preservation District, the landowner was first required 
to identify those portions of a tract that qualified as prime farmland and 
other types of farmland, and was then required to set aside for 
agricultural uses and not develop or subdivide either 60% or 50% of the 
tract that qualified as farmland (which percentage depended on the 
category of farmland.) Other restrictions limited the portion of a lot that 
could be developed as a residence. In addition, the percentage that was to 
be reserved as "non-buildable" had to be transferred from the owner or 
dedicated to the Township, a conservation organization or other 
organization in order to protect its future use for agricultural purposes. 
C & M developers objected to the ordinance on the grounds that its plans 
to develop 461 single-family homes on a 200-acre tract would be limited 
to 57 homes. C&M maintained that the ordinance effectively limited it, 
as landowner of more than 10 acres, to developing approximately one 
single-family home for every three acres. 
Justice Russell M. Nigro, writing for a unanimous court, held that the 
ordinance was unduly restrictive or exclusionary, and that the public 
purpose served by the ordinance did not completely outweigh the 
landowner's right to do as it sees fit with its property. The Court quoted 
with approval statements in earlier decisions that while minimum lot size 
requirements may be justified in certain circumstances, "at some point 
along the spectrum" the size of lots ceases to be a concern requiring 
public regulation and becomes simply a matter of private preference. 
In reaching his conclusion, Justice Nigro took care to clarify the standard 
of review in Pennsylvania for analyzing ordinances that restrict lot size. 
He analyzed the long line of decisions on this issue going back to Justice 
Roberts' decision in Concord Township Appeal, 268 A2d 765 (Pa 1970), 
in which Roberts concluded that an ordinance with a minimum size 
restriction of two acres is unreasonable and invalid unless the 
municipality can show that it is supported by an "extraordinary 
justification." That standard has been followed in several cases, and 
Justice Nigro pointed out that the Concord opinion should never have 
been a binding precedent because four of the seven Justices did not join 
Justice Roberts? lead opinion. Justice Nigro rejected the 
extraordinary-justification standard and adopted what he referred to as 
the "traditional standard of review." He pointed out that the proper 
standard of review in Pennsylvania courts for zoning ordinances is that 
they are presumed valid unless a challenging party can establish that they 
are "unreasonable, arbitrary, or not substantially related to a police 
power." 
Justice Nigro supported the landowner's arguments and held that the 
Township failed to sustain even this lower standard of evidence needed 
to justify the ordinance. Although the Township has an interest in 
preserving its agricultural lands, that interest did not outweigh the 
landowner's right to use its property as it saw fit. He found that after 
complying with the ordinances and complying with set-aside restrictions, 
the landowner could be left with using only approximately half of its 
initial tract or subdivision for development. In addition, a portion of that 
remaining tract, could contain areas not suitable for development, such as 
wetlands, floodplains, or steep slopes. 
The ordinance further imposed a minimum one-acre lot size on the area 
that the landowner was permitted to develop, and required that such lot 
be free of watercourses, floodplains, floodplain soils, wetlands, lakes or 
ponds. All these restrictions, when required in addition to the set-aside 
restrictions, not only unduly limit the landowner's ability to sell, 
subdivide or develop that portion of the tract left over, but also do not 
have a substantial relationship to the Township's interest in preserving 
its agricultural lands and activities, or any other general welfare interest 
of the Township. 
Justice Nigro stated: 
Where, as here, the Board has not articulated any reasons for 
requiring landowners developing the "buildable site area" of their 
property to build homes on lots that are a minimum size of one 
acre beyond its belief that one acre was a "good number" which 
would forestall the development of large houses on small lots, we 
are compelled to ascribe an exclusionary purpose to that 
requirement. While we acknowledge that the Township has a 
legitimate interest in preserving its agricultural lands, we find that 
by requiring landowners of tracts greater than ten acres to set 
aside between fifty and sixty percent of the agriculturally 
productive land on their tracts, the Township reasonably meets 
that interest. By also limiting a landowner to developing homes 
on one-acre minimum lots on a buildable site area, however, the 
Township is no longer attempting to preserve agriculture, but 
rather is improperly attempting to exclude people from the area 
and so doing, is unreasonably restricting the property rights of the 
landowner. Thus, as the ordinances? minimum lot size 
requirement is an unreasonable restriction on a landowner?s right 
to use his property and not substantially related to the Township's 
interest in preserving its agriculture lands, we find that the ZHB 
abused its discretion is sustaining the amended Zoning Ordinance 
as constitutionally valid." 
Reporter's Comment: This case gives support for municipalities that 
require landowners to set aside at least sixty percent of their land for 
agricultural use. However, it seems that based on the C & M Developers 
decision, municipalities that intend to establish zoning requiring 
one-acre, or more, sized lots will have their work cut out for them, 
particularly if they impose set-aside restrictions. Municipalities will have 
to overcome challengers' arguments that the ordinance is "unreasonable, 
arbitrary or not substantially related to the police power." But to do that, 
municipalities will apparently have to articulate how large acre zoning 
serves more than an exclusionary purpose