Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Robin Corporation v. Board of Supervisors of Lower Paxton Township, No. 1128 June Term, 1973.
Bruce E. Cooper, with him Cooper, Friedman & Butler, for appellant.
Thomas L. Wenger, with him Richard H. Wix and Wix and Wenger, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Concurring Opinion by Judge Crumlish, Jr.
[ 17 Pa. Commw. Page 388]
This is an appeal filed by Robin Corporation (Robin) from an order of the Court of Common Pleas of Dauphin County, dated February 10, 1974, denying an appeal of Robin from the refusal of the Lower Paxton Township Board of Supervisors (Township) to amend its zoning ordinance under the provisions of Sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10609.1 and 11004.
In 1966, a predecessor corporation, owned and operated by the same people who own and operate Robin, entered into an agreement to purchase approximately 10 acres of land located in the Township, of which approximately three acres were zoned R-2, permitting apartment house usage, and the balance of which was
[ 17 Pa. Commw. Page 389]
zoned R-1,*fn1 which did not permit such usage. Apartment houses were constructed on that portion zoned R-2. In 1970,*fn2 the title to the land was transferred to Robin. The record firmly establishes that at the time this property was acquired by Robin and its predecessor, they fully recognized that the seven acres in question in this case were zoned R-1 and that apartment house usage was not permitted. The record further reveals that the owners of the subject land were aware of the fact that the Township's Planning Commission, and others, had recommended that the subject land be rezoned for R-2 usage, and that the Township's Board of Supervisors had refused to so rezone.
[ 17 Pa. Commw. Page 390]
On December 12, 1972, Robin sent a letter to the Township challenging the constitutionality of the Township's zoning ordinance as it applied to the seven acres Page 390} of Robin zoned R-1, as being confiscatory, requested a curative amendment to rezone the premises R-2, and suggested that, in the event the land was rezoned as suggested, Robin would develop the property into apartment house usage in conformity with the R-2 zoning requirements. It should be noted here that the letter was not accompanied by any "plans or other materials" as required by section 1004 of the MPC, 53 P.S. § 11004.*fn3 It should also be noted that, at the same time, counsel for Robin also submitted a challenge on behalf of John T. Bonitz, the owner of 21.25 acres adjoining the Robin tract. The two cases were consolidated for hearing. Bonitz, however, did not take an appeal from the adverse ruling of the Court, and, therefore, the issues there involved are not before us.
Hearings were held before the Board of Supervisors of the Township, after which the Board issued its adjudication containing detailed findings of fact, discussion and a conclusion of law that Robin had "failed to sustain its burden of showing the necessity of a rezoning of its land." Both Robin and Bonitz took an appeal to the lower court, which received no additional testimony or evidence. The court below dismissed the appeal of Robin for the reasons that Robin was fully aware of the zoning of the subject tract at the time it acquired title, that the record submitted to the court substantiated the findings of the Board that the property could be used for some of the ...