In his opinion, Rufe took note of the criteria for determining curative amendments, as set forth in Surrick. The initial inquiry, according to the Surrick opinion, “must focus upon whether the community in question is a logical area for development and population growth.”
Having determined that a community is in the path of urban-suburban growth, said the Surrick court, the court should examine the present level of development. Factors highly relevant to that inquiry are population density data, the percentage of total undeveloped land and the percentage available for the development of multi-family dwellings.
The court should then determine whether the challenged zoning scheme “effected an exclusionary result.”
Land availability for fair-share purposes is determined by using a formula to determine how many buildable units can be developed in the township. The “availability formula” factors in a ratio of developed to undeveloped land.
The more land that has already been developed, the less land is legally “available” to develop for Surrick purposes.
Buckingham Township has claimed that it is already overcrowded, if one takes into consideration the developed property within its boundaries, including farmland.
But Heritage argued that traditionally, agricultural land is not considered “developed” for the purposes of building congestion. It also argued that builders are not usually handicapped by such a characterization of farmland.
In siding with the zoning board, Rufe ruled that agricultural land could be considered “developed” rather than “undeveloped” land, in keeping with the intent of the Township’s Comprehensive Plan.
Rufe supported his decision by turning to the percentage of township land currently available under the zoning ordinance for multi-family dwelling development. He said that the underlying decision by the zoning hearing board rested on a determination that the zoning ordinance accommodates the current population growth in light of the total undeveloped land in the community.
Formulas and Ratios
VanLuvanee disagreed with the ruling. “If you ask a farmer around here whether he considers his farm to be ‘developed’ he’s likely to say ‘no.’ Of course it’s not developed, but the judge ruled that farmland is developed for one purpose, for the land availability formula, and it’s a fiction. It fictionally condemns farmland in Buckingham Township to suit the availability formula. In every purpose farmland is considered undeveloped property,” he said, “except this one.”
VanLuvanee said that it is clear that the Surrick case voiced constitutional expectations for communities to offer “realistic legitimate housing needs for people who live in and who may want to live in those communities.” He said that Buckingham is trying “to find ways to avoid the merits of Surrick.”
VanLuvanee said there is no dispute that Buckingham has no rental apartment buildings at all in the township, which in and of itself flies in the face of the Surrick ruling.
Bush said that in Buckingham Township, the density allowance for an apartment or townhouse is five per acre by right, and that Buckingham Township is not denying Heritage a right to build, as long as it complies with the ratio.
VanLuvanee questioned the premise of the town’s calculations. “Just the fact that the density allowance for apartments and townhouses is the same, shows you that the township is not sensitive to the Surrick mandate,” he said. “Say you have a family that can only afford to live in an apartment, but the density ratio for development is the same for a townhouse or an apartment, a builder is going to put up a townhouse, not an apartment, because obviously she can get more money for the townhouse. In Buckingham the ratio is the same for both and it’s wrong.”
Bush added that the township is tired of developers coming in and calling their own shots under accusations of nonexistent discrimination.
But VanLuvanee had a different view. “Municipalities have an obligation to follow constitutional mandates. To pay lip service to the law and to find creative ways to get around it can’t be tolerated if the law is to mean anything at all.”
