concurring.
I am satisfied that on this record the challenged zoning ordinance is constitutionally flawed under either the “total exclusion” theory announced in the Appeal of Girsch, 437 Pa. 237, 263 A.2d 395 (1970), or the “fair share” principle followed in Surrick v. Zoning Hearing Board of Township of Upper Providence, 476 Pa. 182, 382 A.2d 105 (1977).
In these instances where there is a successful challenge to an unconstitutional zoning ordinance it is imperative for this Court to mandate that, subject to reasonable modifications, the township or municipality must ultimately adopt the underlying development plan. Not only does such policy guard against any possible retaliation against the litigant who opposed the zoning board, but it also serves to deter the passage of unconstitutional zoning ordinances. As we reasoned in Casey v. Zoning Board of Warwick Township, 459 Pa. 219, 328 A.2d 464 (1974):
Finally, we must determine whether a court has the power to grant an applicant-challenger definitive relief upon rendering a zoning ordinance constitutionally infirm. The appellee seeks a building permit for the erection of multi-family dwellings on his tract of land located in Warwick Township. This Court, pursuant to its disposition of the petition for enforcement of our order in Girsh Appeal has implicitly held that courts in this Commonwealth do have such power. “Obviously, if judicial review of local zoning action is to result in anything more than a farce, the courts must be prepared to go beyond mere invalidation and grant definitive relief.” To forsake a challenger’s reasonable development plans after all the time, effort and capital invested in such a challenge is grossly inequitable.
Id., 459 Pa. at 230, 328 A.2d at 469 (footnotes omitted).
*427Naturally, it is for the municipality to decide whether apartments are more appropriate in one part of the township than in another, Appeal of Girsh, supra, 437 Pa. at 246 n. 6, 263 A.2d at 399 n. 6. As we stated in Appeal of Girsh, supra, “Certainly [the township] can protect its attractive character by requiring apartments to be built in accordance with (reasonable) set-back, open space, height, and other light-and-air requirements, but it cannot refuse to make any provision for apartment living.” Id., 437 Pa. at 245, 263 A.2d at 399 (footnote omitted). Thus, it is appropriate that the developer’s plan in the instant case be approved subject to “certain reasonable restrictions.”
Accordingly, I would reverse the Commonwealth Court’s order and remand the case to the Court of Common Pleas to consider any adjustments which may be required to make the proposed plan compatible with the overall zoning plan of the Township.