11 Pa. Commw. 292 | Pa. Commw. Ct. | 1973
Opinion by
On April 23, 1973, plaintiffs-appellants brought this action in equity to enjoin defendants-appellees from proceeding with the construction of an area vocational-technical school on a 24.775 acre tract of land purchased fey appellees from Adams County for a purchase price of |100,000.00. The estimated project cost was alleged to be 13,620,000.
We summarize the reasons alleged by appellants in the complaint, as amended, to support their claim that the court should exercise its extraordinary powers to perpetually enjoin appellees from using the site they selected:
(1) No feasibility study has been made, including a traffic study;
(2) Other and more desirable land is available at a lesser price;
(4) Cost of sewerage facilities and services would be less on other sites;
(5) Construction costs would be less on other sites;
(6) The 24.775 acre tract is too small, and there is no additional land available for expansion at the proposed site;
(7) The Advisory Council on Historic Preservation may comment adversely on this site and jeopardize $473,000.00 in federal grants;
(8) The project was being pressed to avoid the necessity of a public hearing in the event the then proposed “Taj Mahal” bill was adopted by the General Assembly;
(9) If appellees are enjoined, no loss would be suffered in that the agreement with the County of Adams, grantor, provides that if the land is not used for school purposes, it will revert and the $100,000 will be refunded;
(10) The investigation of the suitability of the site was improperly delegated to a joint operating committee of the Area Vocational-Technical School Board rather than performed by the full Board;
(11) All actions taken since December 1971 by the joint operating committee are a nullity since it has not properly organized and elected officers according to Article XVIII of the Public School Code of 1949, Act of March 10, 1949, P. L. 30, as amended, 24 P.S. §18-1850.3(d).
We have summarized the alleged basis of appellants’ complaints in such detail because the lower court has sustained a preliminary objection by appellees that the appellants are guilty of laches in delaying from March 7, 1972, the date the option to purchase was obtained, until April 23, 1973, when the complaint was filed. We must affirm.
Opinion by
TMs is an appeal from an order of the Court of Common Pleas of Chester County dated January 24, 1973, setting aside the adjudication of the Zoning Hearing Board (Board) of the Borough of Malvern (Borough) in which the Board' had sustained an appeal from the granting of building permits to the three appellees in this case.
On December 17, 1971, the Malvern Borough Council enacted Ordinances Nos. 190 and 191 which in effect amended its Zoning Ordinance to provide for ‘T)A— Office Apartment Districts” at designated locations in the Borough. The record before us indicates that certain citizens of the Borough challenged the legality of Ordinances 190 and 191, and that the matter was finally adjudicated in the Court of Common Pleas. That court dismissed the appeals and sustained the validity of said ordinances. The record before us does not indicate whether exceptions were ever filed or an appeal taken from that court order. The record does indicate that the appellees in this case intervened in all of the cases before the lower court wherein the validity of said ordinances was upheld.
In any event, following the adoption of Ordinances 190 and 191, the appellees herein made application for
Following the Board’s adjudication, the appellees herein took an appeal to the court below. That court without receiving additional evidence or testimony filed its opinion and order wherein it held that under the provisions of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P. L. 805, art. IX, §910, 53 P.S. §10910,
Thereafter the Borough and two of its citizens, viz. Ernest L. Kenney and J. Gilbert Scott, filed an appeal with this Court. The appellees filed a motion to quash the appeal on the basis that (1) the Borough had won in the court below because the court had sustained the validity of the Borough’s ordinance and (2) that neither Kenney nor Scott were parties to the action before the court below from which the appeal was taken. By order of the President Judge of this Court, the parties were ordered to argue both the motion to quash and the case on the merits.
Kenney and Scott contend that they have been interested citizens actively engaged in the protest against Ordinances 190 and 191. They assert that they were parties to the appeal to the Board and further, that their counsel participated in the appeal to the court below. The record does not support their assertion. We have carefully read the record in this case, and we have been unable to find any reference to Kenney, Scott, or counsel representing them anywhere in the record made before the court below. The record made before the Board does contain a sheet of paper marked as an
In summary, this record permits us to conclude that Kenney and Scott have not been parties at any time since an appeal was first taken to the Board.
The MPC in effect at the time these appeals were taken governs who can appeal. Section 914 of the MPC, 53 P.S. §10914, provided that an aggrieved person may file an appeal, in writing, with the Board. We reiterate that the record does not indicate that either Kenney or Scott was a party before the Board. Section 1003 of the MPC, 53 P.S. §1103, provided that “any party before the board” could appeal to court. Section 1006 of the MPC, 53 P.S. §1106, provided for intervention. Even assuming arguendo that Kenney and Scott were parties before the Board, neither one appealed or intervened in the matter before the lower court. We cannot declare either to be a party at any place in the proceedings below, and therefore, they have no right to take an appeal to this Court.
Order
And Now, this 28th day of December, 1973, the appellees’ motion to quash the appeal is hereby granted, and the appeal is dismissed.
This Act was later amended by the Act of June 1, 1972, P. h.
, No. 93, §910, which amendment of course is not applicable under the facts of this case. All reference to the MPO in this Opinion refer to the MPO as found prior to its amendment by the aboye mentioned Act.