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decided: April 12, 1971.


Appeal from the order of the Court of Common Pleas of Montgomery County, No. 69-6948, in case of Limekiln Golf Course, Inc. v. Zoning Board of Adjustment of Horsham Township. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.


Edward Fackenthal, with him Henderson, Wetherill, O'Hey & Horsey, for appellant.

Paul D. North, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Rogers. Judge Manderino concurs in the result.

Author: Rogers

[ 1 Pa. Commw. Page 501]

This is an appeal from an order of the Court of Common Pleas of Montgomery County dismissing an appeal from and affirming a decision of a Zoning Hearing Board.

As our judgment is based upon the somewhat unusual history of this case, it is necessary to make a rather detailed recital of facts.

The appellant, Limekiln Golf Course, Inc. (Limekiln) entered into a written agreement with G. Marcus Edwards and Henrietta Edwards, his wife, dated December 30, 1965, by which relevantly: 1. The Edwards granted Limekiln an option exercisable on or before December 30, 1970, to purchase the Edwards' tract of land in Horsham Township, Montgomery County, containing approximately 22 1/2 acres of land improved with a dwelling house and outbuildings for the purchase

[ 1 Pa. Commw. Page 502]

    price of $47,500; 2. Limekiln paid the Edwards $5,000 on the execution of the agreement and agreed to pay them $3,000 within 60 days after execution and $200 each month commencing February 1, 1966; and 3. The Edwards granted Limekiln during the five-year term of the Agreement "the unqualified and exclusive right to use any portion or portions of the premises [except the dwelling house and a curtilege of approximately two acres] for purposes of landscaping or otherwise improving the same for golf course or related purposes."

On December 30, 1966, and thereafter, Limekiln owned and operated a golf course adjoining the Edwards tract.

In November 1968, Limekiln applied to the Zoning Board of Adjustment of Horsham Township for a special exception to use portions of the Edwards tract for a golf driving range. The tract lay within an AA Residential Zoning District as to which the following provision of the Township Zoning Ordinance applied: "Section 501, Permitted Uses in AA, A and B Residential Districts: 3. Any of the following purposes when authorized as a special exception . . . d. Golf course, golf house, miniature golf course, driving range and archery range."

On December 9, 1968, the Zoning Board conducted a public hearing upon Limekiln's application, at which the applicant's president, a Curtis T. Simmons, submitted a plan of the proposed driving range and testified in some detail as the kinds of facilities to be installed. Public participation at this hearing consisted principally of general objections to the proposal on the part of the owner of an adjacent property. This gentleman's concern was that the driving range might adversely affect the value of his property which he had acquired as a long range investment. A continued hearing was ordered by the Board on the ground that

[ 1 Pa. Commw. Page 503]

    the proposal was "somewhat indefinite" and to allow "a little more thought on your [the appellant's] part perhaps as far as location and safety measures and details . . . and to give us an opportunity to study this thing a little more thoroughly." The continued hearing was conducted on January 13, 1969. On this occasion, there appeared a sizable group of protesters lead by counsel. Mr. Simmons again presented Limekiln's plan for a golf driving range modified to meet the objections of the adjoining property owner.

At the conclusion of testimony, the Chairman of the Board raised the question of whether Limekiln had standing to pursue its application, based upon his, the Chairman's, investigation of the law in "Ladner's Book." The Chairman's expressions of doubt concerning applicant's standing were buttressed by the Board's counsel, who advised the Board that Limekiln had no standing*fn1 because it was not an equitable owner. Limekiln's counsel thereupon suggested that his client might exercise its option while the matter was pending. The Board's counsel objected to this procedure. There then ensued discussion off the record, following which Limekiln's representative withdrew its application. The Chairman of the Board announced: "The Zoning Board is in the position that they do not believe the applicant has equitable ownership in the property, therefore, the application could not properly be acted upon by the Board. We have suggested to the owner, and they

[ 1 Pa. Commw. Page 504]

    have agreed, that they would immediately start action to exercise their option and purchase the property in question. Once they have done this they then become an equitable owner and are entitled to appeal again, to apply again to this Board for a hearing. We have stipulated . . . that all the testimony that has been taken in this case up to this point will be included in the future applications so that we don't have to enter all of that information over again. However, any additional testimony, or new information that would be presented at that time is acceptable to the Board. We will perfunctorily render a decision next month at our regular meeting, but all parties are aware what that decision will be so far as this application is concerned. We are in a position to deny it as it stands at this moment."

On the following evening, January 14, 1969, the supervisors of Horsham Township met in an executive session with the township solicitor, who, as counsel for the Zoning Hearing Board, had attended that Board's hearing of the night before. The supervisors were informed that Limekiln's application for a special exception had been withdrawn; thereupon, according to minutes of this meeting: "The Board then discussed a required change in the Zoning Ordinance pertaining to recreation facilities in residential areas. By unanimous vote, the solicitor was instructed to advertise the ...

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