Appeals from the Orders of the Court of Common Pleas of Montgomery County in the cases of Linda Development Corp. v. Plymouth Township, Albert T. Cox, Jr., Planning Director, and Carl Strand, Building Inspector of Plymouth Township at No. 70-01032; John J. Muir, et ux. and numerous other residents v. Linda Development Corp., et al. at No. 69-13643; and John J. Muir, et ux. and numerous other residents v. Linda Development Corp., et al. at No. 18 September Term, 1969; the latter two cases being transferred to the Commonwealth Court of Pennsylvania from the Supreme Court of Pennsylvania, September 14, 1970.
Milton S. Lazaroff, with him Techner, Rubin & Shapiro, John G. Kaufman and Bean, DeAngelis, Kaufman & Giangiulio, for appellant.
Paul W. Callahan, with him Fox, Differ, Mazer & Callahan, for appellee, Plymouth Township.
Gerald D. Garfinkle, for appellees, Muir, et al.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer.
Before this Court are three appeals all brought by Linda Development Corporation and all involving the proposed development of a high rise apartment on a tract in Plymouth Township, Montgomery County. Cases 941 T.D. 1970 and 993 T.D. 1970 are appeals from orders of the Court of Common Pleas of Montgomery County dismissing Linda's preliminary objections to the complaints filed below by residents of the Township. Case 68 C.D. 1971 is an appeal from the denial by the Court of Common Pleas of a mandamus to compel the Township to issue a building permit for the proposed apartment. With some modification, we are in accord with the positions advanced by Linda.
All three cases arise out of the same factual situation. On September 8, 1969, Plymouth Township amended its zoning ordinance by changing the district in which Linda's land is located from "A-Residential" to "High Rise Apartment". In the latter part of September, certain area residents filed two actions appealing the enactment of this amendment. Number 941 T.D. 1970 arises from civil action number 69-13643 of the Law Division of the Court of Common Pleas of Montgomery County contesting the procedural and substantive propriety of the amendment. Number 993 T.D. 1970 is an appeal from Number 18 September Term
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of the Quarter Sessions Division (Criminal) of the Court of Common Pleas of Montgomery County contesting the procedural propriety of the amendment. Linda filed preliminary objections to both actions in the lower court which on August 5, 1970 dismissed the preliminary objections and the appeals followed.
While these actions were proceeding below, Linda attempted to secure a building permit for its proposed project. On December 8, 1969 the Township refused to consider Linda's application giving two reasons: the pending suits; and the failure of Linda to supply certain data in support of its application which the Township official contended was required. Meanwhile, on November 4, 1969, two new members of the Board of Commissioners of Plymouth Township were elected after a vocal campaign in which one of the major issues was Linda's proposed plan. With these two new members, the Board on January 5, 1970 set a zoning hearing to consider further amendment to the ordinance which would rezone the Linda "High Rise Apartment" tract back to "A-Residential". Advertisement for the hearing was published January 14, 1970. Thereafter, on January 21st Linda filed another application for a building permit which was rejected because of the pending ordinance and of Linda's failure to supply complete drainage plans. Linda thereafter filed civil action number 70-01032 seeking a writ of mandamus in the Court of Common Pleas of Montgomery County which found for the Township. Following argument and the adverse decision upon the exceptions, Linda appealed to this Court in Number 68 C.D. 1971. Because of its effect upon our disposition of the other two appeals, we will first discuss the appeal of the mandamus.
The court below, in its opinion on all three consolidated cases, assigned two reasons for dismissing Linda's
exceptions to the mandamus ruling: (1) the zoning ordinance under which Linda applied for a permit was the subject to two suits attacking its validity; and (2) the pending rezoning of this land "A-Residential" precluded the issuance of a permit. As discussed herein, the two suits attacking the September 8th amendment should have been dismissed by the lower court upon Linda's preliminary objections. This being so, the pendency of these suits would no longer affect Linda's right to a permit under that ordinance.*fn1
As to the second reason advanced by the court below, we need not consider, as was done above, the issues of determining whether the rezoning was pending at the time of the application or whether the Township impeded Linda's effort to make application at the proper time. The rezoning has become effective, and as a consequence the Linda tract is now zoned "A-Residential". Ancillary to, and now more important than the question of whether the rezoning was pending, is the question of the validity of the rezoning ordinance itself. Where an applicant has been denied a permit because of a pending ordinance he may challenge on appeal the constitutionality of that ordinance as finally enacted. Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 211 A.2d 514 (1965).
We agree with Linda's contention that the new rezoning is unconstitutional. Commercial Properties, Inc., supra. There the Supreme Court found the rezoning to be unconstitutional, saying: "In the opinion entered in support of the court's decision below, it was said, '. . . there is not the slightest doubt that the sole purpose of this ...