Appeal from the Order of the Court of Common Pleas of Westmoreland County, in case of Paul Carlson and Evelyn Carlson, his wife, and Wayne D. Frazee v. Hempfield Township Board of Supervisors of the Township of Hempfield, Westmoreland County, Pennsylvania, No. 790 January Term, 1970.
William C. Stillwagon, for appellant.
Thomas C. Ceraso, with him Scales, Shaw, Lyons & Ceraso, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Concurring Opinion by Judge Rogers.
Appellant applied to the Hempfield Township Board of Supervisors for approval of its plans for a mobile home park. The application was left with the office designated by the Township Supervisors to receive such applications sometime before December 30, 1969. The plans had noted thereon the prior approval of the Division of Sanitation of the Pennsylvania Department of Health. After securing some additional information concerning contour lines, adjoining highways, and adjoining property owners, the plans were submitted to the Township Planning Commission. On February 2, 1969, the Township Planning Commission returned the plans "with instruction to present same to the governing body, with full explanation as to the disposition, as to the date received, and other data pertinent to the case." (Record at 40a)
The other "pertinent data" to which the Planning Commission undoubtedly referred were the effective dates of the Hempfield Township Mobile Home Park Ordinance, i.e., December 13, 1969, having been adopted December 8, 1969, and the effective date of the Hempfield Township Zoning Ordinance, i.e., January 5, 1970, having been adopted December 31, 1969, one day after appellant's application for approval of its plans was marked filed.
The Township Supervisors held a special meeting on February 6, 1970, to consider the appellant's application. A notice of the special meeting was posted on the main door of the building at least 24 hours before the meeting. This was in accordance with the custom of this Township when its supervisors call special meetings, and is in accordance with the law. Act of June 21, 1957, P.L. 392, Section 3, as amended, 65 P.S. 253. At this special meeting, with all supervisors present, by a vote of 3-2, the appellant's plans were approved. This
action was taken despite the fact that under the Zoning Ordinance adopted one day after this application was filed, effective five days later, this mobile home park will be located in an R-1 zone.
Appellees, adjoining property owners, presumably having no actual notice of the special meeting, did not appear. When they heard of the decision approving the plans and being refused a request to the supervisors that the matter be reconsidered, they appealed to the Court of Common Pleas. The appeal was based primarily on the fact that the special meeting was allegedly improperly called, and that the action taken was "arbitrary and capricious, contrary to the intent of the various ordinances of Hempfield Township and the laws of the Commonwealth of Pennsylvania." (Record at 5a) Appellant filed a Petition for Rule to Show Cause why the appeal should not be dismissed, alleging that it was taken under the Zoning Ordinance when the application was not made under and not acted upon under the Zoning Ordinance, and that the appellants there, appellees here, were not proper parties since they had not appeared before the supervisors and had not intervened.
On the merits, this case raises for the first time the question of whether a Township Board of Supervisors must decline an application submitted under a Mobile Home Park Ordinance when it has a zoning ordinance "pending" which is incompatible with the application. The lower court, relying on decisions of our Supreme Court and this Court, which hold that a pending ordinance would justify refusal (See Mutzig v. Hatboro Board of Adjustment, 440 Pa. 455, 269 A.2d 694 (1970); Lhormer v. Bowen, 410 Pa. 508, 188 A.2d 747 (1963); Boron ...