Appeal from the Order of the Court of Common Pleas of Bucks County, in cases of In Re: Appeal of William H. R. Casey, Challenging the Validity of the Zoning Ordinance of Warwick Township of 1947, as amended, Nos. 800 May Term, 1970 and 659 January Term, 1971.
Robert W. Valimont, with him William B. Moyer, and Power, Bowen & Valimont, for appellant.
Peter A. Glascott, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
Appellant successfully attacked the zoning ordinance of Warwick Township under the principle established by Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), i.e., there was no provision in the zoning ordinance for multi-family dwellings anywhere in the Township. However, the lower court, having determined that the ordinance in effect at the time of the initiation of the challenge was unconstitutional, nevertheless denied applicant the right to build apartments on the site requested on the grounds that the ordinance had been amended subsequent to the initiation of the challenge but before the decision in this case to permit multi-family dwellings in another part of the Township. The lower court held that it was not necessary for it to decide whether the curative amendment was "pending" at the time the action was initiated, inasmuch
as that court would have given the Township a reasonable time to cure the unconstitutionality even after its decision.
As reasonable as the lower court's decision may seem to some of us, it simply is not the law of Girsh. Following the original Supreme Court decision in that case, the rights of Girsh were assigned to Ashley J. Altman and Sydney A. Altman who, after being denied, brought an action of mandamus to require the issuance of a building permit. In the meanwhile, the Township had enacted an ordinance providing for apartment uses in the Township, but not including the tract under consideration in the initial challenge. The lower court denied the request that a writ of mandamus issue. The Supreme Court of Pennsylvania, in response to a petition, entered the following order: "Now, this 29 day of August, 1972, upon consideration of the petition for enforcement of this Court's order in Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), and the answer thereto, the Building Inspector of Nether Providence Township is directed to issue a building permit to petitioners to construct apartments upon petitioners' filing of appropriate building plans, drawings and specifications in compliance with the Township Building Code.
We must conclude that the same result obtains here. This case is clearly distinguished from Willistown Township v. Chesterdale Farms, Inc., 7 Pa. Commonwealth Ct. 453, 300 A.2d 111 (1973), wherein this Court divided equally as to whether an ordinance passed to cure the constitutional defect had in fact done so. In that case, the appellant was not a party and was not claiming through a party that had successfully attacked the ordinance.
Here, appellee cannot claim the benefit of the pending zoning ordinance doctrine. ...