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EVELINE M. GRAACK AND J.P. EDWARDS v. BOARD SUPERVISORS LOWER NAZARETH TOWNSHIP (01/14/75)

decided: January 14, 1975.

EVELINE M. GRAACK AND J.P. EDWARDS, INC. APPELLANTS,
v.
BOARD OF SUPERVISORS OF LOWER NAZARETH TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, APPELLEE, AND THE GOODMAN COMPANY, INTERVENING APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in case of Eveline M. Graack and J.P. Edwards, Inc., a Pennsylvania corporation, v. Board of Supervisors of Lower Nazareth Township, Northampton County, Pennsylvania, No. 251 August Term, 1973.

COUNSEL

Lewis R. Long and Charles S. Smith, with them, Hemstreet, Smith and Van Antwerpen, for appellants.

Cregg E. Mayrosh, with him Cohn & Mayrosh, for appellee.

Bernard Chanin, with him Lawrence J. Briody and, of counsel, Wolf, Block, Schorr and Solis-Cohen, for intervening appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 17 Pa. Commw. Page 113]

On September 12, 1973, the Board of Supervisors of Lower Nazareth Township adopted two zoning ordinances (Ordinance 42 and Ordinance 43). Ordinance 42 provided for the amendment of the official zoning map of the township by changing the zoning of a certain tract of land from I-Industrial to C-Commercial. The Goodman Company (Intervenor) is equitable owner of the rezoned land. Ordinance 43 provided for the revision of the township zoning ordinance by establishing the classification of "Regional Shopping Center Planned Commercial Development" as a permitted use in C-Commercial

[ 17 Pa. Commw. Page 114]

    zones and further establishing design criteria for this use.

Eveline M. Graack and J.P. Edwards, Inc. (Appellants) filed a zoning appeal with the Court of Common Pleas of Northampton County on October 11, 1973, challenging the adoption of the ordinances as special legislation, enacted without proper notice. The notice of appeal alleged that Appellant Graack was the legal owner of a 42.83 acre tract in Lower Nazareth Township and Appellant Edwards was equitable owner of same. Intervenor, pursuant to Section 1009 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11009, (MPC), became a party as of November 13, 1973. The court below entered an order on June 28, 1974, granting motions by the Board of Supervisors to dismiss, and by Intervenor to quash the appeal as to Ordinance 42, while also granting the Board of Supervisors a judgment on the pleadings as to Ordinance 43. Appeal followed to our Court.

Two matters are before us for determination. First, we must decide whether quashal is warranted, and second, if the granting of the motion to quash was improper, whether the challenge to the respective ordinances has merit.

At the outset, we find the court did err in quashing this appeal. The basis of that ruling to quash was Appellant's failure to comply with Section 1008(3) of the MPC, 53 P.S. § 11008(3), which provides in part:

"(3) If the appellant is a person other than the landowner of the land directly involved in the decision or action appealed from, the appellant, within seven days after the zoning appeal is filed, shall serve a true copy of the zoning appeal notice by mailing said notice to the ...


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