concurring and dissenting.
I join with the Court in ruling that the zoning ordinance challenged in this case is invalid. Because the ordinance explicitly prohibits multi-family dwellings as a permitted use this case is governed by our decisions in Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970) and National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965). A finding that an ordinance explicitly prohibits a given use operates to place a heavy burden on the municipality to prove that the ordinance bears a “more substantial relationship” to a legitimate public purpose (health, safety, morals, general wel*434fare), more substantial, that is, than would be necessary to support a zoning provision generally. See, e.g., Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971); Exton Quarries Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967). This burden was clearly not met.1
I disagree with the Majority, however, as to the remedy applicable upon this finding of a violation. The Majority cites language from Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 328 A.2d 464 (1974), to the effect that a successful litigant is entitled to relief which recognizes the propriety of his challenge, rewards his efforts in testing the legality of the ordinance, and prevents “retributive” action by the municipality which would correct the illegality but leave the challenger unbenefitted. To proceed directly from this unobjectionable language to the statement that “[accordingly, Casey governs the instant litigation and mandates that appellants be permitted to develop their property as proposed, subject to reasonable restrictions, regardless of how that land is currently zoned,” at 421-422 (emphasis added), is to “answer” the question presented by avoiding it.
Some four years after our decision in Casey, the legislature amended the Municipalities Planning Code to enumerate the factors to be considered by courts in fashioning relief where it was found that a zoning ordinance was invalid. Act of October 5, 1978, P.L. 1067, No. 249, § 6, amending Act of June 1, 1972, P.L. 333, No. 93, 53 P.S. *435§ 11011(2). The Majority eviscerates this statute by simplistically tagging the factors enumerated with the label “fair share analysis” and reiterating the previous discussion that “fair share analysis” is inapplicable to cases of explicit prohibition. It is undeniable that the considerations mandated by the statute greatly resemble the elements of the “fair share analysis.” The resemblence does not, however, demonstrate that the legislature sought to impose the “fair share analysis” on all cases. It is, I believe, no more than a reflection of the fact that both the statute and our case law on “fair share” revolve around the fundamental purposes of valid zoning enactments.
It would appear that the purpose of this statute was to maintain the integrity of the overall local plan of development while at the same time allowing a successful challenger the benefit of proceeding with some development contrary to the specific zoning plan which has been invalidated. (It should be noted that the statute does not permit a remedy wherein the challenger would reap no benefit from his challenge. The options available to the court are to “order the described development or use approved as to all elements or [to] order it approved as to some elements and refer other elements to the governing body ...” 53 P.S. § 11011(2).) Without analysis the Majority disapproves this legislative balancing of interests and applies prior case law, with drastic results, so aptly described by Justice McDermott. This, although the avoidance of such results was likely the impetus for the legislation. By requiring the virtually total approval of a development without regard for the character of the region as it exists, the Majority thwarts the legislative purpose of this statute, indeed, the purpose of zoning legislation generally — to provide for growth and efficient use of land and resources according to a rational, comprehensive regional plan for development.
McDERMOTT, J., joins in the dissenting portion of this concurring and dissenting opinion.. Unlike the Majority, I think it relevant to examine whether the area was a logical place for growth and development and the related question whether the area was already highly developed. Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977). These initial inquiries of the Surrick analysis, preceding what may properly be characterized as the fair share test, set the background against which the reasonableness of a challenged ordinance can be assessed. Though highly unlikely, the possibility must not be foreclosed that an area might be so highly developed, or have such other peculiar characteristics, that even an explicit prohibition could survive scrutiny.