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WYNNEWOOD CIVIC ASSOCIATION ET AL. v. LOWER MERION TOWNSHIP (01/17/56)

January 17, 1956

WYNNEWOOD CIVIC ASSOCIATION ET AL., APPELLANTS,
v.
LOWER MERION TOWNSHIP



Appeal, No. 282, Oct. T., 1955, from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1952, No. 33, in case of Wynnewood Civic Association et al. v. Township of Lower Merion and Thomas Wynne, Incorporated. Order affirmed.

COUNSEL

Desmond J. McTighe, with him Duffy, McTighe & McElhone, for appellants.

Edmund B. Spaeth, Jr., with him John E. Forsythe, Township Solicitor, and Wright, Mauck, Hawes & Spencer, for township, appellee.

Robert L. Trescher, with him C. Brewster Rhoads, and Montgomery, McCracken, Walker & Rhoads, for intervenor, appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Woodside

[ 180 Pa. Super. Page 454]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the Court of Quarter Sessions of Montgomery County dismissing a complaint by which the appellants sought to have the court declare invalid an ordinance of a first class township amending a zoning ordinance.

On December 8, 1952 the Commissioners of Lower Merion Township, by a vote of 9 to 4, enacted Ordinance No. 1031 which amended the township's zoning ordinance by changing the classification of a tract of land of approximately 15 acres from R3 and R4 residential districts to an R7 residential district. Under the township's zoning ordinance apartment houses may be constructed in R7 residential districts but not in the other two.

The Wynnewood Civic Association, a non-profit corporation, and a number of property owners in the

[ 180 Pa. Super. Page 455]

    neighborhood of, but not within, the redistricted area, filed a complaint in the Court of Quarter Sessions of Montgomery County on December 26, 1952 contending that the ordinance of December 8 was illegal for a number of specified reasons some of which related to procedural matters and some of which did not.

The complaint was filed under the provisions of Clause I, Section 1502 of The First Class Township Code of June 24, 1931, P.L. 1206, as amended, 53 PS 19092-1502(I), which provides, inter alia, as follows:

"Complaint as to the legality of any ordinance or resolution may be made to the court of quarter sessions upon entering into bond with sufficient security to be approved by the court to prosecute the same with effect and for the payment of costs by any person aggrieved, within thirty days after any ordinance or resolution takes effect. The determination and the order of the court thereon shall be conclusive. In cases of the laying out of streets over private property the court shall have jurisdiction to review the propriety as well as the legality of the ordinance."

The township asked the Montgomery County Court to dismiss the proceedings for lack of jurisdiction contending that the only remedy available to complainants was under the provisions of The First Class Township Code relating specifically to zoning, namely, an appeal to the Board of Adjustment and then the Court of Common Pleas of Montgomery County. The Court of Quarter Sessions of Montgomery County decided against the township on this point, and its action was affirmed by this Court in Wynnewood Civic Association v. Lower Merion Township, 175 Pa. Superior Ct. 20, 102 A.2d 423(1954).

The township then presented a petition to the court of quarter sessions on which a rule was allowed to show cause why the ...


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