Robert L. Trescher, Garrett A. Brownback, Montgomery, McCracken, Walker & Rhoads, Philadelphia, for appellants.
David E. Groshens, Lansdale, William Barclay Lex, Philadelphia, Samuel H. High, Jr., Norristown, for appellees.
Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.
[ 176 Pa. Super. Page 466]
This is a zoning case. On September 11, 1952, the township commissioners of Abington Township, a first class township in Montgomery County, enacted Ordinance No. 700, amending the basic zoning ordinance of the township by changing the classification of approximately 51 acres of land owned by York Road Business Center, Inc. from residential to commercial. Thereafter, certain individuals and an organization known as the Rydal-Meadowbrook Civic Association filed a complaint to test the legality of the amendment in the Court of Quarter Sessions for Montgomery County pursuant to section 1502 of the First Class Township Code, 53 P.S. § 19092-1502, par. 1, which provides, inter alia: 'Complaint as to the legality of any ordinance or resolution may be made to the court of quarter sessions * * * by any person aggrieved, within thirty days after any ordinance or resolution takes effect. * * *' The landowner was permitted to intervene in the court below in support of the ordinance. After several hearings, the trial judge disposed of the case on the merits, holding that Ordinance No. 700 was 'constitutional and vaild'. Exceptions to the findings of fact and conclusions of law of the trial judge were dismissed by the court en banc and this appeal followed.
On or about May 8, 1952, York Road Business Center, Inc. filed with the township commissioners a petition requesting that the classification of certain land owned by it be changed from 'V' Residential to 'F' Commercial. The tract involved contained approximately 51 acres and was part of a larger tract acquired by the corporation a short time before the petition
[ 176 Pa. Super. Page 467]
to rezone was filed. On May 8, 1952, the commissioners fixed June 26, 1952 as the date for a public hearing on the proposed zoning change. Notice of this hearing was published in accordance with the requirements of sections 3104 and 3105 of the Code, as amended, 53 P.S. §§ 19092-3104, 19092-3105. Further, in partial compliance with a provision of the township zoning ordinance to the effect that notice of a public hearing concerning a zoning change be mailed to the owner or owners of every lot within 500 feet of the area affected by the proposed change, the commissioners caused such notice to be mailed to some but not all such owners.
The public hearing was held on June 26, 1952. Thereafter a written protest against the proposed change was filed, said protest being an attempt to require that the amendment become effective only upon a favorable vote of three-fourths of all the members of the board of township commissioners as provided in section 3105 of the Code, as amended, 53 P.S. § 19092-3105. On September 11, 1952, the township commissioners adopted Ordinance No. 700 by a vote of 9 to 3, with one member absent.
The court below found that York Road Business Center, Inc. 'plans to build upon the tract a regional shopping center, which will contain a two-story department store and approximately fifty single stores, to be located approximately in the center of the tract, with off-street parking facilities surrounding the buildings to accommodate 5000 cars.' The court found further that 'the shopping center will supply the township and school district with an increased tax base which is urgently needed by the municipal authorities to adequately perform their functions'. It is apparent -- and tacitly admitted by the proponents of the amendment -- that the possibility of an increased tax yield was given
[ 176 Pa. Super. Page 468]
great weight by the township commissioners in enacting Ordinance No. 700 and by the court below in sustaining it.
George W. Emlen, a real estate broker and a 'stockholder, small stockholder, a member of the Board of Directors' of York Road Business Center, Inc., testified with respect to the corporation's plans for the rezoned tract. He stated: 'The group of stores which we hope to build, I am talking about what we hope to do, not what we have actually made leases for or anything of that sort, is a department store, with maybe one hundred and fifty thousand square feet, which would be two stories and a basement. In addition to that, we would have a group of satellite stores, probably as many as thirty.' In 'round figures', Emlen testified, the corporation planned to erect 'Ten million dollars worth of buildings.' According to the witness an associate had made 'encouraging contacts' with regard to borrowing the ten million dollars from 'financial institutions' which Emlen declined to name because such information was 'more or less of a confidential nature.' At the time of the trial the shopping center was 'very much in the embryonic stage', with progress limited to a 'little sketching and planning' done by a former employe of one of Emlen's associates. Nothing more had been done because, in Emlen's words, 'we are ...