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The framers of the 1776 Constitution of the Commonwealth of Pennsylvania unequivocally pronounce, in the first chapter and section, the sheer import of property rights to a free society: “That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Reconciling such a staunch perspective with a municipality’s police powers, guaranteeing its citizens health, safety, welfare and morality can, at times, prove to be a difficult task. And the protracted land use litigation impacting the site of the Valley Forge Golf Club in Upper Merion is emblematic of this occasional quandary (some might suggest occasionally litigated yet frequent). Over the last half-century or so, Upper Merion Township has experienced growth which can only be characterized as explosive. The origin of this expansion dates back to 1957, when an enhanced transportation infrastructure became a reality for commuters. The Schuylkill Expressway (still under construction to this day) was connected to the Pennsylvania Turnpike and U.S. Route 202. In just three decades, at the millennium, the township had about 27,000 residents, hosted over 60,000 jobs and offered more than 9.5. million square feet of office space (mind you Microsoft builds a few million at a time). Upper Merion also is home to Valley Forge National Park, the commonwealth’s eldest park, and the suburban shopping mecca otherwise known as the King of Prussia Mall. Situated in the midst of this hotbed of commercialism is a bastion of tranquility (and frustration for us amateurs), 135 acres of golf links. The Valley Forge Golf Club also happens to be an antique of sorts. It commenced operations in the 1920s (pre-Sam Snead and Ben Hogan), more than 30 years prior to the township’s first zoning regulations. By 1953, a significant portion of Upper Merion had been designated an agricultural zoning district. There, the only uses as of right were municipal, single-family detached homes and agriculture. Clearly the King of Prussia Mall and office complexes do not fall within that category. The then-ensuing wave of commercial development would not have occurred without concerted rezoning efforts. So the township began chipping away at its agricultural district, which had been reduced to around 145 acres by the time the dust had settled. And for all intents and purposes, the course became the last vestige of the district, an island amidst a sea of modernity. The stage had been set for a land use battle of titanic proportions. In 1964, the township fired its warning shot. Its governing body enacted Ordinance No. 64-141, which singled out the course, deeming it a “recreation” area and placing a three year moratorium on development. The club countered, succeeding on a challenge of the ordinance as an unconstitutional taking. The township adopted a new strategy, this time upping the ante with a bond issue, marketing effort and all. It would put a vote before the electorate to incur $2 million of debt for the sole purpose of preserving the course as one of the last significant, open space, green areas. A brochure was distributed to the residents and actually said: “[I]t is for the welfare of the human being to enjoy natural green area in view of the ever-increasing jungle of cement and steel all about us.” The board’s inflated rhetoric resounded with the citizenry, and the bond issue was approved by the electorate. An authority was created for the purpose of acquiring and operating the course, followed shortly thereafter by condemnation proceedings. The club parried and prevailed with preliminary objections; the township let its appeal go as a result of mounting costs. With the unconstitutional taking in the past, the club pursued a rezoning of about one-half of the subject property. It wanted to deem a portion as suburban metropolitan for the purpose of commercial development. Shockingly, those rezoning efforts were foiled. In fact, an ardent prospective purchaser took a stab at it as well. Ultimately defeated, that litigant attacked the substantive validity of the agricultural district as a last ditch effort; it failed. Potential buyer No. 2, Realen, threw its proverbial hard hat into the ring and began to wage its own independent battle against the township. The owner’s failure to intervene eventually formed the basis for ancillary litigation. Realen’s primary complaint was that the agricultural district constituted impermissive spot zoning. The zoning board struck down such a challenge and concluded the subject property, especially its shape, size and proximity to the major arterial highways, is unique. The trial court affirmed as did the Commonwealth Court, with the Pennsylvania Supreme Court allowing appeal ( In re: Appeal of Realen Valley Forge Greenes Associates, 2003). The Realen litigation ultimately would become precedent, integral to a proper “spot zoning” analysis. As sacred as personal property rights might be, there are limitations to a landowner’s use of his or her property. At some point, one’s use might begin to impinge upon the rights of others, even subjecting third parties to harm. Pennsylvania’s Municipal Planning Code provides municipalities with the ammunition they need to maintain the vitality of their police powers. Zoning is the mechanism by which they strike a balance between fundamental property rights and the public interest. The Realen court ironically harkens back to a perspective articulated by the state Supreme Court the same year the moratorium was placed upon the club: “The natural or zealous desire of many zoning boards to protect, improve and develop their community, to plan a city or a township or a community that is both practical and beautiful, and to conserve the property values as well as the ‘tone’ of that community is commendable. But they must remember that property owners have certain rights which are ordained, protected and preserved in our constitution and which neither zeal nor worthwhile objectives can impinge upon or abolish.” (Cleaver, 1964). The million-dollar question in the instant matter is whether or not Upper Merion Township’s agricultural zoning district went too far. A likely disincentive for challenges, upon review a court must start from the premise that a particular ordinance is presumptively constitutional. So the burden is on the challenger to prove that it is in fact unreasonable, arbitrary or not substantially related to the police power. Realen had to demonstrate unfounded disparate treatment amongst similar landowners or that the ordinance here was unduly restrictive or exclusionary. The courts engage in a substantive due process analysis, in which they balance the rights of landowners against the public interest. (CM Developers, 2002). Substantial deference is to be afforded the landowners yet harm to neighbors must also be considered. In Realen’s estimation, the agricultural zoning district constituted spot zoning, or that the township singled out the club, as opposed to properly gearing the zoning to the community at large in conformance with a comprehensive plan and for the growth of the community. Was the disparate treatment of the club justifiable? On the record, at least, the Realen court answered that question with a resounding “no.” The highest court took serious issue with the analyses of the lower courts. One significant defect in their rationale involved the consideration of the size of the subject property, a factor irrelevant to a spot zoning review. “It makes no difference whether it is a 1/4 acre lot or a 50 acre industrial complex area . . . ” (Commercial Properties, 1965). As for the question of whether the agriculture-zoning district was justified, there was no support offered for the proposition that the location of the nearby roadways made the agricultural designation more appropriate, than say another classification. There is little question that Upper Merion engaged in spot zoning. Interestingly though, the Realen case presents a slightly atypical spot zoning scenario; this is a “reverse spot zoning” case. Rather than a single municipal act directed at the subject property, its island predicament occurred over time, with the gradual rezoning of surrounding properties. Upper Merion simply decided to keep the club in a state of suspended zoning animation, ignoring the land use realities occurring all around it. I guess the visionaries among us, with a penchant for rolling hills and all things natural, should give pause before putting their land to a use that might capture too much of the public’s attention. HARPER DIMMERMAN represents clients in real estate matters and is the principal of his firm and president of DST Land Transfer, Inc., a title insurance company licensed in Pennsylvania and New Jersey. He may be reached via e-mail at [email protected] or telephone at 215-545-0600. He is co-chairman of the Philadelphia Bar Association’s solo and small firm committee and an executive committee member of the law practice management committee and YLD.

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