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DONAHUE v. ZONING BOARD ADJUSTMENT. (10/10/63)

October 10, 1963

DONAHUE, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 178, Jan. T., 1963, from order of Court of Common Pleas of Montgomery County, No. 62-7838, in case of Paul D. Donahue, Richard H. Forster, William Hamilton et al. v. Zoning Board of Adjustment of Whitemarsh Township. Order affirmed; reargument refused November 7, 1963.

COUNSEL

William J. Woolston, for appellants.

John G. Kaufman, with him Elmer L. Menges, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 412 Pa. Page 333]

OPINION BY MR. JUSTICE ROBERTS

This appeal challenges the validity of zoning ordinances 151 and 155 of Whitemarsh Township, Montgomery County. The court of common pleas sustained both enactments.*fn1

Ordinance 151, enacted January 25, 1962, amended the townships' general zoning ordinance to authorize, for the first time, a residential "Apartment House District." This ordinance set forth specific criteria to be met by apartment house construction in an area rezoned to the new classification. However, no specific area on the zoning map was designated "Apartment House District." On March 8, 1962, less than six weeks later, the township supervisors amended the general zoning ordinance and the zoning map so as to rezone from "A Residential" to "Apartment House District" a strip of land on Ridge Pike, east of Spring Mill Road.

Appellants, neighboring land owners, appealed to the zoning board of adjustment from the issuance of a building permit for construction of apartment houses in the newly rezoned district. The board concluded that it had no authority to pass upon the validity of the two ordinances and affirmed the issuance of the permit. This appeal arises from the affirmance by the court of common pleas of the board's action.

[ 412 Pa. Page 334]

Appellants challenge the validity of zoning ordinances 151 and 155, and seek support from various aspects of the decision of this Court in Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A.2d 7 (1960). In that case, we held municipal zoning ordinances invalid because they had not been enacted in accordance with a comprehensive plan, as required by § 2003 of The Second Class Township Code,*fn2 and because they delegated to the township supervisors duties which were not given them by the enabling legislation. The ordinances in Eves created a new zoning classification, "F-1 Limited Industrial", but did not delineate the districts so classified. Instead, a step by step procedure was outlined by which owners of land within the township could obtain "F-1" classification for their particular properties. It was this case by case review which demonstrated the absence of a comprehensive plan and which sought to enable the board of supervisors to exercise powers they did not statutorily possess.

In the instant case, the new classification was established and the zoning map amended within a very short period of time. Under the rules of statutory construction which are likewise applicable to ordinances, see Cloverleaf Trailer Sales Co. v. Pleasant Hills Borough, 366 Pa. 116, 76 A.2d 872 (1950); Philadelphia v. Phillips, 179 Pa. Superior Ct. 87, 116 A.2d 243 (1955); these ordinances should be read together as one enactment. See Statutory Construction Act, May 28, 1937, P.L. 1019, § 62, 46 P.S. § 562. So construed, ordinances 151 and 155 do not create the "floating zone", ...


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