19 Pa. Commw. 110 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal filed by Highland Township (Township) from an order of the Court of Common Pleas of Chester County, dated October 18, 1974, which declared Article II, Section 202.1 of the Township ordinance, requiring a minimum lot area of three acres for a single-family dwelling in a Rural-Agricultural District, to be unconstitutional as applied to the property of Ralph W. Connelly, Inc., and which stated that the lower court would retain jurisdiction for the purpose of issuing such supplementary orders as shall be from time to time appropriate upon the submission of plans, applications for permits and other relevant materials by Ralph W. Connelly, Inc.
This case commenced with the filing on March 28, 1973 of a letter signed by counsel on behalf of Ralph Connelly et ux. (Connelly)
In any event, Connelly filed his challenge under the provisions of section 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §11004. The Township, therefore, under the provisions of said Act, set the matter down for hearing and duly advertised same. At the hear
Following the hearing the governing body of the Township, in a written adjudication, denied Connelly’s request for a curative amendment. Connelly appealed to the court below which did not receive any additional testimony or evidence. After argument, the lower court, in a well-reasoned opinion, concluded, based upon the pronouncements of our Supreme Court in Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970) and National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965), that the three-acre restriction of the Township’s zoning ordinance, as it applied to Connelly’s 52 acres, was unconstitutional. As noted above the lower court retained
The question before us in this appeal is whether the court below abused its discretion or committed an error of law. See Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975). We conclude that the court did commit an error of law and that, therefore, we must reverse.
We recognize that the 1972 amendments to the MPC have created a great deal of confusion in the field of zoning law. We hope, however, our recent opinions dealing with the MPC, especially Article X thereof, will succeed in resolving some of the questions arising under the 1972 amendments. See Ellick, supra; Robin Corporation v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975); Hess v. Upper Oxford Township, 17 Pa. Commonwealth Ct. 399, 332 A.2d 836 (1975); Warren v. Ferrick, 17 Pa. Commonwealth Ct. 421, 333 A.2d 237 (1975); Board of Commissioners of McCandless Township v. Beho Development Co., Inc., 16 Pa. Commonwealth Ct. 448, 332 A.2d 848 (1975).
Our review of the record in this case forces us to conclude that the lower court must be reversed because Connelly failed to follow proper procedure. Section 1004 of the MPC, 53 P.S. §11004, sets forth certain mandatory requirements which would entitle a landowner to relief under the provisions thereof. If he chooses the alternative in section 1004(1) (b) of submitting his challenge to the governing body, then he must submit a written request for a hearing. The request must contain a short statement reasonably informing the governing body of the matters which are in issue and the grounds for his challenge. The request must be accompanied by a proposed curative amendment under section 609.1 of the MPC, 53 P.S.
Section 1004(2)(c) of the MPC, 53 P.S. §11004 (2)(c), reads as follows:
“The request shall be accompanied by plans and other materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating the challenged ordinance or map in the light thereof. . . .” (Emphasis added.)
It is quite clear to us that the legislative intent involved in section 1004(2)(c) requires, as an indispensable part of this entire proceeding, plans and other materials describing the use or development proposed by the landowner, so that the governing body (and ultimately the court) will be able to consider the merits of a specific proposed use or development in relation to the allegedly defective ordinance. Challenges pursuant to section 1004 of the MPC are limited to landowners who, on substantive grounds, desire to challenge the validity of an ordinance or map which prohibits or restricts a specific proposed use or development, and said use or development must be described by plans and other materials in accordance with section 1004(2)(c). A mere statement of intent to develop at some time in the future is not sufficient to give a landowner standing under section 1004. In this case, at no place in the proceeding did Connelly ever present any plans or other materials describing a proposed use or development. Connelly omitted what was mandated by
Although not necessary for the 'disposition of this case, we believe that it is important to note that, in our opinion, even if Connelly had followed proper procedure, his very brief testimony was not sufficient to satisfy his burden of proving that the present zoning of his property is unconstitutional.
In summary, we have concluded that (Connelly failed to follow the procedural requirement of 'section 1004 of the MPC which mandates the filing of “¿lans and other materials” with a challenge, and that, therefore, the lower court should have dismissed Connelly’s appeal. We therefore reverse the order of the lower court.
. At the hearing before the governing body, it' apparently was agreed that a corporation called Ralph W. Connelly, Inc. was the applicant or challenger. The corporation is a closed one apparently owned by the family of Ralph W. Connelly. The record, however, is silent upon whether the corporation or Mr. and Mrs. Connelly held title to the land in question at the time of the hearing. We will assume for the purposes of this opinion that the corporation held title, but for convenience sake we will refer to the landowner as Connelly, the individual, rather than Ralph W. Connelly, Inc., the corporation.
. There is nothing in the record indicating a demand for residential housing in the Township which cannot be satisfied by those areas already zoned for residential use.