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LEVITT AND SONS v. KANE (01/13/72)

decided: January 13, 1972.

LEVITT AND SONS, INC., ET AL.
v.
KANE, JR. LEVITT AND SONS, INC., ET AL. V. KANE, JR., ET AL. DAIKELER V. KANE, JR.



Appeals from the Orders of the Court of Common Pleas of Montgomery County, in cases of John B. Kane, Jr. v. Bert C. Daikeler, Ellis B. Delp, Board of Supervisors of Montgomery Township, Levitt and Sons, Inc. and Bill Realty Company, No. 69-11277; John B. Kane, Jr., et al. v. Bert C. Daikeler, Ellis B. Delp, Ernest H. Brenneman, Board of Supervisors of Montgomery Township, No. 69-17813; and John B. Kane, Jr., et al. v. Bert C. Daikeler, Ellis B. Delp, Ernest H. Brenneman, Board of Supervisors of Montgomery Township, No. 45 November Term, 1969, Criminal Division.

COUNSEL

Richard L. Bazelon, with him William T. Coleman, Jr. and James A. Sutton, Dilworth, Paxson, Kalish, Levy & Coleman, and Philip R. Detwiler, Butera and Detwiler, for appellants, Levitt and Sons, Inc. and Bill Realty Co.

Jules Pearlstine, with him Pearlstine, Salkin, Hardiman, Robinson, Hunn & Meinzer and John P. Knox, Stefan, Timoney, Knox & Avrigian, for appellant, Daikeler.

William R. Cooper, with him Bette J. Walters, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Judge Manderino did not participate in the decision. Opinion by Judge Rogers.

Author: Rogers

[ 4 Pa. Commw. Page 376]

There are here before us three appeals from an order of the Court of Common Pleas of Montgomery County. The dramatis personae in this involved and extensive zoning case are as follows:

[ 4 Pa. Commw. Page 377]

Levitt & Sons, Inc. and its wholly owned subsidiary, Bill Realty Company, which will be hereinafter referred to as Levitt; Bert C. Daikeler, a Supervisor of Montgomery Township, Montgomery County, Pennsylvania; John B. Kane, Jr. and Annette C. Kane, his wife, Richard E. Crown and Margaret A. Crown, his wife, Richard S. Peer and June Peer, his wife, Willard Zitin and Naomi Zitin, his wife, and Stanley Wisniewski and Theresa Wisniewski, his wife, property owners to whom we will hereinafter refer as protestants; and finally Bert C. Daikeler, Ellis B. Delp and Ernest H. Brenneman in their capacity as Supervisors of Montgomery Township, a Second Class Township of the Commonwealth.

Levitt acquired 808 acres of land in Montgomery Township. It petitioned the Board of Supervisors to amend the Zoning Map so as to place its holdings located in an R-1 zoning district within the less restrictive R-2 district. The permitted land uses are the same in both districts, residential and agricultural by right and institutional by special exception. The principal differences in regulation are that in the R-1 zone each lot sought to be used is required to have an area of 40,000 square feet and a lot width of 200 feet, whereas in the R-2 district the minimum lot size requirements are 20,000 square feet if the lot is served by public sewage and water, and 25,000 square feet if not so provided. The width requirement of the R-2 district is 100 feet. The ordinance also provides less restrictive height, side yard, rear yard and building coverage regulations in the R-2 district.

The Board of Supervisors submitted Levitt's proposal for recommendation to the Montgomery County Planning Commission and the Montgomery Township Planning Commission. Both bodies recommended that the proposed amendment be adopted and the Township

[ 4 Pa. Commw. Page 378]

Planning Commission additionally recommended that a rectangular area bounded on all sides by public roads, containing about 1300 acres and including Levitt's 808 acres, be placed within the R-2 zoning district. At least some if not all of the protestants are the owners of properties within the rectangle.

The Board of Supervisors conducted hearings on Levitt's application at which nineteen (19) witnesses testified, creating a record of over 700 pages and 14 exhibits. The Supervisors on July 7, 1969 enacted an ordinance amending the zoning map so as to place the Levitt holdings within the R-2 district. The Board then considered the matter of the adjacent 500 acres at two public hearings. At one only minutes were kept; at the other a transcript of 138 pages was made. On December 1, 1969, after receiving the favorable recommendations of the County and Township Planning Commissions, the Supervisors enacted an ordinance rezoning the 500 acre area to R-2.

The protestants attacked the two ordinances on two fronts: first, pursuant to Section 702 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, Article VII, as amended, 53 P.S. § 65741, they filed as to each a complaint as to legality; second, they filed as to each a petition in the nature of the zoning appeal notice provided by Section 1005 of The Pennsylvania Municipalities Planning Code (hereinafter MPC), Act of July 31, 1968, P.L. , No. 247, 53 P.S. § 11005. The complaints under The Second Class Township Code and the petitions under the MPC contained virtually duplicate assertions, most of which were directed to alleged substantive deficiencies. Indeed, the only significant procedural objection was contained in the complaint under The Second Class Township Code as to the legality of the ordinance of December 1, 1969: that the vote of Bert C. Daikeler, one of the majority of two

[ 4 Pa. Commw. Page 379]

    supervisors who voted for enactment, should be nullified because of an alleged interest of Mr. Daikeler in the change of zoning effected thereby.

The court below considered the two complaints and the two appeals together, after conducting a further hearing at which the "record" made at the supervisors' hearing was admitted into evidence, more witnesses examined and an additional 16 exhibits accepted.

The court below did the following:

As to the ordinance enacted July 7, 1969, rezoning the Levitt holding of 808 acres, it (a) dismissed the complaint under the Second Class Township Code on the ground that no defect in the procedure of adoption had been shown*fn1 and (b) dismissed the appeal under the MPC because, no application for a building permit having been applied for by Levitt, the matter was not ripe for judicial determination under the authority of Roeder v. Hatfield Borough Council, 439 Pa. 241, 266 A.2d 691 (1970).*fn2

As to the ordinance enacted December 1, 1969, rezoning the approximately 500 acres within the rectangle formed by public roads, it (a) sustained the complaint as to legality under the Second Class Township Code on the ground that Mr. Daikeler's vote was ineffective by reason of a disqualifying interest in the zoning change,*fn3 and (b) sustained the appeal under the MPC because in its view the new zoning effected spot zoning, lacked conformity with the comprehensive plan of the Township, was an unlawful delegation of legislative

[ 4 Pa. Commw. Page 380]

    power to a private interest, and, in general, was arbitrary, capricious, ...


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