Appeal from the Order of the Court of Common Pleas of Northampton County in case of George Calantoni & Sons, Inc. v. Forks Township Board of Supervisors, No. 251 May Term, 1971.
Stanley E. Stettz, with him Fackenthal, Teel & Stettz, for appellant.
Carl K. Zucker, with him Leonard M. Cohn, Reuben E. Cohen and Cohen, Shapiro, Polisher, Shiekman & Cohen, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Judge Rogers concurs in the result only.
This is an appeal from an order, dated December 6, 1971, of the Court of Common Pleas of Northampton County, remanding the appeal of George Calantoni & Sons, Inc. (Calantoni), to the Planning Commission of Forks Township (Township) for the purpose of resolving a dispute between the Township and Calantoni, concerning floor area ratios. The order also stated that, if the resolution of the said dispute was in favor of Calantoni, then the Planning Commission was directed to approve Calantoni's plans for a Planned Unit Development (PUD), which plans are described hereinafter.
Calantoni is the owner of 31.66 acres of land in Forks Township. The land is located in a district zoned "G-B District -- General Business" under the Township's Zoning Ordinance. This Ordinance is dated September 18, 1968, and was enacted pursuant to the authority conferred by The Second Class Township Code, Act of May 1, 1933, P.L. 103, art. XX, as amended, 53 P.S. § 67001 et seq.
On or before April 13, 1971, Calantoni filed plans, related data, and an application seeking approval of the PUD for the said tract of land with the Township Planning Commission. Section 721 of the Zoning Ordinance contains the regulations applicable to PUD and in Subsection 721.02 it provides: "Location. Planned unit developments are permitted in the RR, R-20, R-12 and R-9 Districts (upon condition)." Section 641 of the Zoning Ordinance contains the permitted uses for a G-B district, and at Subsection 641.16 states: "Any use permitted in R-9 District."
On April 13, 1971, the Planning Commission decided that preliminary approval would be granted for the PUD, provided the Township Supervisors and Township Solicitor ascertained that Calantoni had used the proper method in determining the necessary floor area ratio. In an opinion, dated April 30, 1971, the Township Solicitor found the floor area issue to be moot, because in his opinion, a PUD could not be placed in a G-B district. The Solicitor found as a matter of legislative intent that the Zoning Ordinance was not intended to permit pyramid zoning and that the Township Supervisors had intended that residential uses, such as the PUD, were not to be tolerated in a business or commercial district. Based primarily upon the Solicitor's opinion, both the Planning Commission and the Township Board of Supervisors advised Calantoni that a PUD development would not be permitted on the land
in question, and therefore, approval of its plan was refused. The record is not clear whether a hearing was held before either the Planning Commission or the Township Supervisors; but in any event, Calantoni appealed directly to the Court of Common Pleas of Northampton County. Although the record does not disclose a hearing before the court below, it is assumed that the court accepted the admitted averments of the appeal pleadings, together with what appear to be stipulated documents taken from the records of the Planning Commission and Board of Supervisors of the Township. Based on this record, the court below made findings of fact and conclusions of law from which it issued the remand order. In summary the lower court concluded that the two sections of the Zoning Ordinance at issue, namely Sections 641 and 721, were not in conflict and that by virtue of the wording of Subsection 641.16, Calantoni had a right to approval of his PUD, provided the dispute concerning the floor area ratios was settled or determined by the Township.
In appealing to this Court, the Township has presented one issue. That is, whether the court's interpretation of the two-named sections of the Zoning Ordinance was correct thereby permitting the PUD proposal of Calantoni. We must first start with an understanding that in this Commonwealth a property owner has certain constitutional rights in his property. These include a right to use his own home and property any way he desires, provided that he does not (1) violate any provisions of the Federal or State Constitutions; or (2) create a nuisance; or (3) violate any laws or zoning or police regulations which are constitutional. Zoning ordinances are valid and constitutional as ...