Appeal from order of Court of Common Pleas of Montgomery County, No. 69-6564, in case of Donald Roeder v. Borough Council of Borough of Hatfield et al.
Victor S. Jaczun, with him Power, Bowen & Valimont, for appellant.
Jules Pearlstine, with him Pearlstine, Salkin, Hardman, Robinson, Hunn & Meinzer, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts and Mr. Justice Pomeroy dissent.
This is an appeal from the order of the Court of Common Pleas of Montgomery County, quashing an appeal which sought to have an ordinance amending the zoning code of the Borough of Hatfield declared invalid as spot zoning.
On October 7, 1968, the Borough of Hatfield passed a general zoning code. Later an application was made by C. Robert Smith for the rezoning of a certain area in Hatfield Township. After the required notice was sent out and a hearing held, the Borough Council enacted Ordinance No. 191 on January 6, 1969 to become final February 6, 1969. The ordinance changed an area within an R-1 residential district (the highest classification) to an A Apartment District.
Donald Roeder, a borough resident and appellant, filed an appeal with the Zoning Hearing Board on January 29, 1969 pursuant to § 910 of the Municipalities Planning Code (MPC), the Act of July 31, 1968, P. L. , No. 247, art. IX, 53 P. S. § 10910 (Supp. 1970). The Board, after hearing, prepared findings of fact and concluded (1) that "no issues of fact 'within the special competence of the board,' or 'any issue of fact or interpretation, not hitherto properly determined at a hearing before another competent agency or body'
were raised" and (2) that it had no authority to "second-guess" the Borough Council. These findings were filed on April 9, 1969, and on May 7 appellant filed an appeal with the court below pursuant to §§ 1001 and 1002 of the MPC, 53 P. S. §§ 11001 and 11002 (Supp. 1970). On October 16, 1969 the court below granted a motion to quash filed by C. Robert Smith, an owner of land in the rezoned case, and stated that actions challenging the validity of a borough ordinance should be pursued under § 1010 of The Borough Code, the Act of February 1, 1966, P. L. (1965) 1656, as amended, the Act of October 9, 1967, P. L. 399, § 1, 53 P. S. § 46010 (Supp. 1970) rather than §§ 902, 1001 and 1002 of the MPC.
Section 1010 of The Borough Code states: "Complaint as to the legality of any ordinance or resolution may be made to the court of quarter sessions, upon entering into recognizance with sufficient security to prosecute the same with effect and for the payment of costs, by any person aggrieved, within thirty days after the enactment of any ordinance or the adoption of any resolution, and the determination and order of the court thereon shall be conclusive. . . ."
Section 910 of the MPC states:
"Except as provided in section 912, relative to variances, the board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the governing body. Recognizing that challenges to the validity of an ordinance or map may present issues of fact and of interpretation which may lie within the special competence of the board, and to facilitate speedy disposition of such challenges by a court, the board may hear all challenges wherein the validity of the ordinance or map presents any issue of fact or of interpretation, not ...