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BOARD SUPERVISORS FERGUSON TOWNSHIP v. JACK STROUSE (11/18/74)

decided: November 18, 1974.

THE BOARD OF SUPERVISORS OF FERGUSON TOWNSHIP, APPELLANT,
v.
JACK STROUSE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Centre County in case of Jack Strouse v. The Board of Supervisors of Ferguson Township, No. 226 October Term, 1973.

COUNSEL

Benjamin Novak, with him William H. Simmet and Novak & Donovan, for appellant.

Reed McCormick, with him Dunaway, Weyandt & McCormick, for appellee.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 16 Pa. Commw. Page 144]

This is an appeal by the Board of Supervisors of Ferguson Township (Township) from an order of the Court of Common Pleas of Centre County dismissing its preliminary objections to an appeal by Jack Strouse (Strouse) from the Township's denial of his rezoning request.*fn1

[ 16 Pa. Commw. Page 145]

Strouse is the owner of land located in Ferguson Township outside the Borough of State College in Centre County. His land is presently zoned "R-2, Low Density Residence District," which permits single-family detached houses, single-family semidetached houses, essential services, and agricultural uses. In August of 1972, Strouse began to seek rezoning of approximately twelve acres of his land to permit the construction of a neighborhood shopping center, to be zoned "C-1, General Commercial District," and garden-type apartments, duplexes, and multi-dwellings, to be zoned "R-3, Medium Density Residential District." After several meetings with regional and township officers,*fn2 Strouse's request for rezoning was denied by the Township on September 11, 1973.

It is the Township's position that a refusal of a municipal governing body to rezone is not subject to judicial review; consequently, the lower court did not have jurisdiction to hear Strouse's appeal and should have sustained the Township's preliminary objections and quashed the appeal. We agree and therefore reverse.

In Clover Hill Farms, Inc. v. Lehigh Township Board of Supervisors, 5 Pa. Commonwealth Ct. 239, 289 A.2d 778 (1972), we held that the refusal of a municipal governing body to rezone is not subject to review by this or any other court. Since our holding in the above case, the Pennsylvania Municipalities Planning Code*fn3 has been amended so that in certain situations a landowner who, on substantive grounds, desires to challenge the validity of a zoning ordinance may submit his challenge directly to the governing body with a subsequent right of appeal to the local court of common pleas.

[ 16 Pa. Commw. Page 146]

The section implementing this change in procedure is Section 1004, 53 P.S. ยง 11004, which reads in pertinent part as follows:

"(1) A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he ...


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