25 Pa. Commw. 489 | Pa. Commw. Ct. | 1976
Opinion by
This appeal presents a factual situation very close to that of In Re: Appeal of FPA Corporation, 25 Pa. Commonwealth Ct. 221, A.2d (1976), except that in the instant ease the lower court sustained a borough’s refusal to adopt a curative amendment proposed by a landowner, challenging the validity of a borough’s ordinance, whereas in FPA Corporation the lower court allowed the landowner to proceed. We reverse.
Perlstein alleged that the adoption of his proposed amendment would cure these defects; the borough disagreed and refused to adopt the curative amendment. On appeal, the lower court took testimony, made its own findings of fact and conclusions of law, and sustained the borough’s refusal to adopt the amendment. The lower court held that the allegation of confiscation and nonconformity to the community development objectives should properly be pursued as a variance request under Section 912 of the MPC, 53 P.S. §10912, and that the pending ordinance doctrine applied to cure the exclusion of townhouse uses.
This appeal followed. Since we dispose of this appeal on the basis that the pending ordinance doctrine does not apply, we have no need to reach the issue of whether it was proper for Perlstein to pursue his confiscation argument via Section 1004 of the MPC, 53 P.S. §11004.
When he filed his challenge, multi-family uses were permitted in other zoning districts but townhouses were prohibited everywhere in the borough.
“14. On February 10 and 27, 1974, the Planning Commission advertised that on February 27, 1974 it would conduct public hearings on its Comprehensive Plan revisions which called for the R-3 Multi-Family District to be divided into three new multi-family classifications, B-3, R-4 and R-5. The notices further advised that this recommendation for rezoning would be considered at the next Council meeting on March 12, 1974. On March 12, Council adopted the Revised Comprehensive Plan by resolution.
“15. The R-4 District specifically included townhouses, cluster houses and planned unit developments as permitted uses.
“16. Perlstein’s property was not included in the planned rezoning.
“17. This action was re-advertised on April 10 and 24 with some modification. On May 14, 1974, the multi-family resoning package was again discussed and enacted unanimously.” (Emphasis added.)
The lower court reasoned that, following Boron Oil Company v. Kimple, 445 Pa. 327, 284 A.2d 744 (1971), and Lhormer v. Bowen, 410 Pa. 508, 188 A.2d 747
“The events preceding the adoption of an ordinance must he examined whenever the issue of pendency is raised. An ordinance is pending when the governing body ‘has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on the rezoning. ’ Boron Oil Company v. Kimple, supra, 445 Pa. at 331, 284 A.2d at 747.” Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 226, 328 A.2d 464, 467 (1974) .
A comprehensive plan is recommendatory, not mandatory, Saenger v. Planning Commission of Berks County, 9 Pa. Commonwealth Ct. 499, 308 A.2d 175 (1973),
Failure to provide for townhouse uses in a borough invalidates the zoning ordinance. Dublin Properties v. The Board of Commissioners of Upper Dublin Township, 21 Pa. Commonwealth Ct. 54, 342 A.2d 821 (1975) ; Camp Hill Development Co., Inc. v. Zoning Board of Adjustment of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974). We must reiterate what Judge Kramer said in Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 417, 333 A.2d 239, 247 (1975):
“A muuicipality with a defective ordinance runs the risk that a landowner will successfully challenge the ordinance and be permitted to proceed with a de
Order reversed. The record is hereby remanded to the .lower court with directions that the appellant’s proposed use-of his property be permitted subject to his compliance with other proper regulations of the borough.
Adopted pursuant to Section 606 of the MPC, 53 P.S. §10606.
See Robin Corporation v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975) ; Board of Commissioners of McCandless Township v. Beho Development Company, Inc., 16 Pa. Commonwealth Ct. 448, 332 A.2d 848
The ordinance defined a multi-family dwelling as “a building or portion thereof designed and used exclusively for occupancy by three (3) or more families, hut not including a building consisting of one-family units attached side by side with individual entrances.”
See also George Calantoni & Sons, Inc. v. Board of Supervisors, 6 Pa. Commonwealth Ct. 521, 297 A.2d 164 (1972), and Morelli v. Borough of St. Marys, 1 Pa. Commonwealth Ct. 612, 275 A.2d 889 (1971).