Appeal from the order of the Court of Common Pleas of Chester County, Civil Action -- Law, No. 269 July Term, 1969, in case of Friendship Builders, Inc. v. West Brandywine Township (Chester County) Zoning Hearing Board. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.
Lawrence Sager, with him, Sager & Sager, for appellant.
John E. Good, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri. Opinion by Judge Mencer.
On May 2, 1968 John Eshelman, President of Friendship Builders, Inc., and owner of a tract of land in West Brandywine Township, Chester County, received approval from the supervisors of that township of a subdivision plan comprising thirty-two (32) lots numbered 90 through 121. These lots averaged 22,000 square feet in area. The township had no zoning ordinance
applicable to the property on the date of the approval of the subdivision plan. Subsequently a zoning ordinance was enacted on October 3, 1968 which established minimum lot requirements of 30,000 square feet for the property in question. Friendship Builders, Inc., hereinafter referred to as appellant, had an option to build houses on Eshleman's land and applied in March 1969 for certain permits to erect houses on lots as laid out on the approved subdivision plan. The application for the permits was refused and appellant appealed to the Board of Adjustment. The Board granted variances to build houses on lots 105 to 109 inclusive, and refused building permits for the remaining lots. Appellant then appealed to the Court of Common Pleas of Chester County which affirmed the decision of the Board. This appeal followed.
Appellant asserts that it has a vested interest as a result of the approval of its subdivision plan prior to the Township's adoption of a new ordinance providing for a larger lot size than was set forth in the previously approved plan. It is contended that § 508(4) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. , No. 247, 53 P.S. § 10508 is controlling in the instant case. This section provides, inter alia: "When an application for approval of a plot whether preliminary or final, has been approved or approved subject to conditions acceptable to the applicant, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied to affect adversely the right of the applicant to commence and to complete any aspect of the terms of such approval within three years from such approval. Where final approval is preceded by preliminary approval, the three-year period shall be counted from the date of preliminary approval."
We conclude that the Pennsylvania Municipalities Planning Code is not involved in this appeal. Section
[ 1 Pa. Commw. Page 28102]
of the Code, 53 P.S. § 10102, provides that the effective date of the Act is January 1, 1969. The zoning ordinance in question on this appeal was enacted October 3, 1968. In addition, § 508(4), 53 P.S. § 10508, relied on by appellant relates specifically to a change or amendment in the zoning, subdivision or other governing ordinance, whereas the fact situation in the present case clearly establishes that the zoning ordinance enacted by the appellee was the first such ordinance, not a change in or amendment to any previous zoning ordinance.
Appellant also asserts that this appeal is controlled by Gallagher v. Building Inspector, City of Erie, 432 Pa. 301, 247 A.2d 572 (1968) and Cheltenham Township ...