Appeal from the Order of the Court of Common Pleas of Bucks County in case of G.R.S.H., Inc. v. The Zoning Hearing Board of Northampton Township, No. 73-698-07-6.
E. Dillwyn Darlington, with him Cadwallader, Darlington & Clarke, for appellant.
Harry C. Barbin, for appellee.
President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr. did not participate. Opinion by Judge Blatt.
[ 14 Pa. Commw. Page 366]
On February 8, 1972, G.R.S.H., Inc. filed an application with the Zoning Officer of Northampton Township (Township) for zoning and building permits to construct townhouses on a 46 acre tract of land in the Township. At the time the application was filed, the Township's zoning ordinance made no provision for multi-family dwellings or townhouses anywhere in the Township and the application was therefore denied by the Zoning Officer. G.R.S.H. then appealed to the Township's Zoning Hearing Board (Board), challenging the constitutionality of the zoning ordinance. Additionally, on February 29, 1972, G.R.S.H. advised the Township Board of Supervisors of its challenge to the validity of the zoning ordinance on the basis that the ordinance failed to provide for multi-family dwellings. It did so in order to secure the relief authorized by Sections 802 and 1009(2)*fn1 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805 (MPC).
The Board held extensive hearings and made findings of fact,*fn2 after which G.R.S.H. appealed to the Court of Common Pleas of Bucks County. That court, without taking any additional evidence, held that the Township's zoning ordinance was invalid because exclusionary and that a subsequently passed amendment allegedly curing the deficiency to the ordinance could not be considered. It ordered the requested permits
[ 14 Pa. Commw. Page 367]
issued to G.R.S.H. The Township has appealed to this Court.
Initially we must note that, as of the date G.R.S.H. applied for its permits, it would seem clear that the Township's zoning ordinance excluded multi-family dwellings and townhouses, and the Township apparently does not dispute that the ordinance was thus invalid as being exclusionary under the reasoning of Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970) and Camp Hill Development Co., Inc. v. Zoning Board of Adjustment of the Borough of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974). A question arises, however, as to the effect of a subsequently enacted amendment to the zoning ordinance which allegedly cured this defect.
The record indicates that the Township Planning Commission and the Township Board of Supervisors had been considering the possibility of a planned residential development (PRD) amendment to the Township zoning ordinance since sometime in 1970. It was not until February 24, 1972, however, that notice of a public hearing to consider a PRD ordinance was first advertised, and it was September 20, 1972 when such an ordinance, Ordinance 129, was adopted.*fn3 The Township argues that the ultimate adoption of this ordinance cured the challenged deficiencies in the earlier zoning ordinance, and validated its earlier refusal to grant the requested permits to G.R.S.H. We cannot agree.
Our case of Casey v. Zoning Hearing Board, 8 Pa. Commonwealth Ct. 473, 303 A.2d 535 (1973), is controlling and it prohibits our consideration of Ordinance 129. We held in Casey, supra, that a curative amendment to an ordinance forbidding multi-family ...