Breaking Down Barriers: New Report Shows Excluding Apartments is Already Illegal Across Pennsylvania

YIMBY Law has created a new report that provides a powerful legal tool for challenging exclusionary zoning in the Keystone State. The report, The Pennsylvania Fair Share Doctrine: Excluding multi-family housing developments is already illegal in many Pennsylvania cities, details a decades-old legal principle that requires municipalities to provide their “fair share” of housing, particularly multi-family homes.

The doctrine, established by the Pennsylvania Supreme Court in the landmark 1977 case Surrick v. Zoning Hearing Bd., is a potent but underutilized tool to combat the housing shortage. The doctrine is based on a simple, powerful idea: neighborhoods are for homes and homes are for people. Municipalities cannot use zoning to wall themselves off from growth or outlaw basic forms of housing like apartments and townhomes.

For too long, communities have acted with impunity, using zoning to illegally exclude apartments and the people who live in them. This report arms advocates, developers, and officials with the knowledge that this practice isn’t just bad policy; it’s already against the law. The Fair Share Doctrine is Pennsylvania’s legal key to opening the door for more homes.

Official bodies which enact or enforce zoning codes have an affirmative duty to use their powers for the public good. Exclusion does not serve that good, and is not justifiable under Pennsylvania law. That law is clear, as reinforced by Surrick and later the Municipalities Planning Code: aesthetic concerns or a desire to exclude are not legitimate uses of government power, compared with the existential need for housing growth. Property rights and the need for a diversity of housing are protected under the state constitution, whereas aesthetics are matters of pure preference.

As outlined in the report, the Surrick court created a test to determine if a zoning ordinance is illegally exclusionary. It examines (1) if the community is in the path of growth, (2) its current level of development, and (3) if its zoning has an exclusionary result or intent. Total exclusions of multifamily dwellings are always unconstitutional. Partial or practical exclusions are illegal if they amount to “tokenism” and make building such homes practically impossible.

The report argues that many communities in the orbit of major cities like Philadelphia are likely violating this doctrine. Municipalities with substantial undeveloped land but minimal land zoned for multi-family housing are particularly vulnerable to legal challenge.

Governor Shapiro is making housing a major focus of his tenure, and will receive a first draft of PA’s Housing Action Plan this week. In light of that focus, local officials should be aware of their responsibilities, and the power Fair Share grants the Attorney General’s office, and residents grant them to fight back against exclusionary zoning. Though specifics of Fair Share’s application remain unclear, the general truth is powerful and undeniable: exclusion is not a legitimate use of the zoning power, and courts can be relied upon to enforce the responsibilities of local planners and councils.

Read our report below –