Peter A. Glascott, Doylestown, Stephen B. Harris, Harris & Harris, Warrington, for appellant.
Robert W. Valimont, William B. Moyer, Richard P. McBride, Doylestown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., concurs in the result. Jones, C. J., filed a dissenting opinion.
This is an appeal from an order of the Commonwealth Court directing the building inspector of Warwick Township to issue a building permit to the appellee,
adoption of an amendment to the 1969 Zoning Ordinance which would provide for multi-family housing within the township; however, the area wherein such housing would be permitted did not include the land of Harcourt Wells, Inc. Public notice of this proposed amendment was made on May 1 and May 8, 1970, and it was adopted on May 25th.
In the interim, on May 22, 1970, the Zoning Hearing Board began its hearings on Harcourt Wells, Inc.'s challenge to the validity of the township zoning ordinance. On June 14th, the Zoning Hearing Board issued its decision dismissing the challenge to the validity of the ordinance. However, prior to this, or on May 25, 1970, William H. R. Casey, as successor in interest to Harcourt Wells, Inc., filed an appeal in the Court of Common Pleas of Bucks County contending, inter alia, the Zoning Board was "without authority to determine questions concerning the validity of the zoning ordinance." A second appeal was also filed subsequent to the Zoning Hearing Board's issuance of its decision, but prior to the hearing before the Court of Common Pleas. These two appeals were formally consolidated for hearing before the Court of Common Pleas.
On April 16, 1972, the court filed a decision in favor of the township. It held that, although the 1969 Zoning Ordinance was unconstitutional in light of the principles enunciated in Girsh Appeal, the multi-family housing provision adopted on May 25, 1970, had cured the constitutional infirmity. The court also ruled that the appellant had not met the burden of proof to successfully challenge the constitutionality of the minimum lot requirement.
On appeal, the Commonwealth Court held that the multi-family housing provision did not cure the constitutional defect because it was not pending at the time the applicant filed the challenge to the validity of the ...