Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Ordinance Enacted to Preserve
Agricultural Lands and Activities Invalid

Harrison M. Pittman
Staff Attorney

In an action brought by a property owner seeking review of a zoning board's decision to deny his challenge to the constitutionality of a zoning ordinance that restricted development of single-family detached housing in agricultural areas, the Supreme Court of Pennsylvania has reversed the zoning board's decision. C & M Developers, Inc. v. Bedminster Tp. Zoning Hearing Board, 820 A.2d 143 (Pa. 2002). The court ruled that although the township could, pursuant to its police power, enact an ordinance designed to protect its agricultural lands and activities, the zoning board abused its discretion when it determined that the ordinance was reasonable and substantially related to the township's interest in protecting its agricultural lands and activities. See id. at 155-56. It also ruled that when read as whole, the ordinance unreasonably infringed upon the property owner's constitutional right to freely use and enjoy his property. See id. at 156.

On August 12, 1996, the Township Board of Supervisors for Bedminster Township, Pennsylvania, enacted an ordinance declaring that "'the objective of Bedminster Township [is] to preserve prime agriculture and farmland and to provide for the orderly development of the Community.'" Id. at 146-47 (citation omitted). The ordinance established an Agricultural Preservation District ("AP District"), that covered nearly ninety percent of Bedminster Township and required owners of land within the AP District to "to take measures to protect and preserve a portion of their land for agricultural purposes." Id. at 147 (citation omitted).

Under the ordinance, a landowner with a tract of land ten acres or less in size located in an AP District was permitted to subdivide and develop the land, without restrictions, into lots of 80,000 square feet. See id. The ordinance, however, restricted a landowner with a tract of land larger than ten acres located in an AP District from subdividing or developing the land until a soil analysis was performed on the tract. See id. Moreover, the ordinance provided that

[p]ursuant to the soil analysis, the landowner must identify those portions of the tract that qualify as prime farmland, farmland of statewide importance, and farmland of local importance. The landowner must then set aside for agricultural uses and not develop or subdivide sixty percent of the tract that qualifies as prime farmland and fifty percent of that qualifies as farmland of statewide importance and/or farmland of local importance ("non-buildable site area"). On that portion of land available for development ("buildable-site area"), the landowner may only develop single-family residences on lots containing at least one contiguous acre, i.e., 43,560 square feet. No portion of the one-acre lot may include watercourses, floodplains, floodplain soils, wetlands, lakes, or ponds. Moreover, in developing a residence on a lot, a landowner must allow for a contiguous building envelope of 10,000 square feet around the residence and within the lot's borders in order to provide a sufficient area for the possible addition of a driveway, patio, yard, or other alterations.

Id. (citations omitted).

On August 20, 1996, C & M Developers, Inc. ("C & M") brought an action before the Township Zoning Hearing Board ("Board") challenging the validity of the ordinance. See id. at 149. It argued that the provisions in the ordinance that required "a landowner of a tract containing more than ten acres in the AP District set aside and perpetually restrict from development between fifty and sixty percent of his tract were unreasonable and therefore, should be declared invalid." Id. It also argued that the provisions in the ordinance that restricted "the degree of development on the buildable site area were unreasonable and therefore, should also be deemed invalid." Id.

On October 18, 1999, the Board denied C & M's challenge to the ordinance. See id. In doing so, the Board determined that the evidence admitted in the course of C & M's challenge "established that there . . . [was] a viable agricultural industry in the Township and the Township had a legitimate interest in preserving its agricultural lands, which was expressed by the Township in its Comprehensive Plan." Id. The Board also determined that the regulations contained in the ordinance "limiting development in the AP District were a reasonable means of accomplishing the Township's interest in preserving its agricultural lands." Id. C & M appealed the Board's decision to the trial court, and the trial court affirmed the Board's determination. See id. It then appealed the trial court's decision to the Commonwealth Court, where the decision was also affirmed. See id. C & M appealed the Commonwealth Court's decision to the Supreme Court of Pennsylvania. See id. at 150.

C & M asserted that after taking into account the various requirements set forth in the ordinance, "a typical landowner of a tract greater than ten acres located in the AP District [is limited] to developing approximately one single-family home per approximately every three acres, i.e., a density limitation of one unit per every three acres." Id. It contended that "this is an unreasonably low density limitation and such a limitation cannot be sustained unless the Township demonstrates that the limitation is supported by an extraordinary public interest justification." Id. In support of this argument, C & M asserted that "because virtually all of the land in the AP District that is not wetlands, floodplains, or steep slopes, is either prime farmland, farmland of statewide importance, or farmland of local importance, a landowner in the AP District essentially must set aside fifty percent of his land for agricultural purposes" due to the ordinance's set aside requirements. Id. at 154.

C & M also argued that "the set aside requirement . . . [was] not substantially related to the Township's interest in preserving agriculture, but rather . . . [was] meant to preserve its bucolic character." Id. at 154-55. Finally, C & M argued that "even if such a large set aside requirement is found to be reasonable and substantially related to the Township's interest in preserving its agricultural lands, the additional restrictions required by the ordinance "on the buildable site area, e.g., the one-acre minimum lot size, are unreasonable and not substantially related to the Township's interest in preserving its agricultural land because they concern that area of the tract already designated as 'buildable.'" Id. at 155.

Although a property owner's right to enjoy his property is protected under the United States Constitution, "[t]hat right . . . may be reasonably limited by zoning ordinances that are enacted by municipalities pursuant to their police power, i.e., governmental action taken to protect or preserve the public health, safety, morality, and welfare." Id. at 150 (citation omitted). "Where there is a particular public health, safety, morality, or welfare interest in a community, the municipality may utilize zoning measures that are substantially related to the protection and preservation of such an interest." Id. (citations omitted). When the validity of a zoning ordinance is at issue, the general rule is that the ordinance "must be presumed constitutionally valid unless a challenging party shows that it is unreasonable, arbitrary, or not substantially related to the police power interest that the ordinance purports to serve." Id. at 150-51 (citations omitted).

If an ordinance is found to be "unduly restrictive or exclusionary," it can be deemed to be unreasonable and not substantially related to a police power. Id. at 151 (citations omitted). Moreover, "an ordinance will be deemed to be arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for such disparate treatment." Id. (citation omitted). When reviewing the validity of an ordinance, "courts must generally employ a 'substantive due process inquiry, involving a balancing of landowners' rights against the public interest sought to be protected by an exercise of the police power.'" Id. (citation omitted).

Under Pennsylvania law, municipalities are permitted to use zoning ordinances to protect "prime agricultural land and encourage agricultural activity." Id. at 155 (citations omitted). The zoning ordinances must, however, "be based on a public health, safety, morality, or welfare interest expressed by the community" and must be "reasonable, non-arbitrary, and substantially related to that interest expressed by the municipality." Id. (citations omitted).

The court noted that land located in Bedminster Township was currently used primarily for agricultural purposes. See id. (citations omitted). It also noted that in recent years the amount of land in the township devoted to agriculture had declined. See id. It further noted that as a result of this decline in the amount of land devoted to agriculture, the township "has emphasized in its Comprehensive Plan that the preservation of its agricultural lands is an important goal of the Township." Id. (citation omitted). It ruled that

[i]n light of this evidence, which indicates that the land in the Township is predominantly used for agricultural purposes at the present time and that the Township has expressed a general welfare interest in keeping its agricultural lands and activities from being lost, we agree with the lower courts that the . . . [Board] properly determined that the Township may enact, pursuant to its police power, zoning regulations to preserve its agricultural lands and activities.

Id.

The court also ruled, however, that the Board "abused its discretion in finding that the Ordinance's provisions regarding the AP District . . . [were] reasonable and substantially related to the Township's interest in preserving agricultural lands and activities." Id. at 156. It stated that the restrictions the ordinance places on a landowner of a tract larger than ten acres in the AP District "must be looked at as a whole, and when considered as such, we agree with . . . [C & M] that they unreasonably infringe upon a landowner's constitutionally protected right to freely use and enjoy his property." Id. It also stated that while the township "undoubtedly has an interest in preserving its agricultural lands, that interest does not completely outweigh a landowner's right to use his property as he sees fit." Id. (citation omitted).

The court further stated that while the township "may have intended to achieve a reasonable balance between its interest in preserving its agricultural lands and activities and a landowner's right to use his property as he pleases, the Ordinance fails to obtain such a reasonable balance." Id. at 157. It added that

[a]fter complying with the Ordinance's set aside restrictions, a landowner is left with using only approximately half of his initial tract for subdivision or development purposes. A portion of that remaining tract, however, contains areas not suitable for development, such as wetlands, floodplains, or steep slopes. The Ordinance then further restricts a landowner on the area that remains open for development to building single-family homes on a minimum size of one acre, which is free of watercourses, floodplains, floodplain soils, wetlands, lakes, or ponds. We find that these restrictions, when required in addition to the set aside restrictions, not only unduly limit a landowner's ability to sell, subdivide, or develop that portion of his tract left over to him, 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.

Id.

The court stated 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 met its legitimate interest of preserving agricultural lands. Id. at 158. It also stated, however, that "[b]y also limiting a landowner to developing homes on one-acre minimum lots on the buildable site area," the township "is no longer attempting to preserve agriculture, but rather, is improperly attempting to exclude people from the area and in so doing, is unreasonably restricting the property rights of the landowner." Id. "Thus," the court added, "as the Ordinance's minimum lot size requirements 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 agricultural lands, we find that the . . . [the Board] abused its discretion in sustaining the . . . [ordinance] . . . as constitutionally valid." Id. at 158-59.

The case was decided on November 1, 2002; this summary was posted August, 2003