Appeal from the Order of the Court of Common Pleas of Montgomery County in case of James J. Phelan, Jr., and Edith N. Phelan, his wife, v. Zoning Hearing Board of Lower Merion Township, No. 72-14159.
Parker H. Wilson, with him Alonzo R. Horsey, and Wilson, Oehrle & Drayer, for appellant.
James J. Phelan, Jr., for appellees.
Robert S. Ryan, with him Lewis H. Van Dusen, Jr., and Drinker, Biddle & Reath, for amicus curiae, Zoning Hearing Board of Lower Merion Township.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Mencer.
This is the appeal of Lower Merion Township from an order of the Court of Common Pleas of Montgomery County declaring Section 2511.1*fn1 of the Lower Merion Township Zoning Ordinance unconstitutional. That section prohibits the construction of a tennis court in the front, rear and side yard setback areas required in residential districts in the Township.
Mr. and Mrs. James J. Phelan, Jr. without applying for a zoning permit commenced and half completed construction*fn2 of a tennis court in the backyard of their home, located in an R-2 residential district where the required rear yard setback is twenty-five feet. The tennis court was to have extended to within four feet of the Phelans' rear property line. Their belated application for a permit was refused by the zoning officer.
The Phelans appealed the zoning officer's action to the zoning hearing board, requesting a variance. At the board
hearing the Phelans presented evidence of neighborhood approval of the already commenced construction, the absence of ecological ill-effects of their proposed tennis court, the unfeasibility of constructing a tennis court on their lot in conformity with the ordinances' requirements and the expense of the work completed. In the course of his testimony Mr. Phelan additionally asserted that "the Zoning Ordinance . . . is discriminatory in the sense that no R-2 Residential Zoning could ever construct a tennis court."
The Zoning Hearing Board denied the variance and stated it would and could not rule on Mr. Phelan's charge that the ordinance was discriminatory because this challenge had not been made in the manner required by the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101 et seq. (MPC). The Phelans filed a timely appeal from the Zoning Hearing Board's decision to the Montgomery County Court of Common Pleas.
Mr. Phelan, on November 19, 1973, in a written communication to the Township Board of Commissioners attacked the validity of Section 2511.1, citing Sections 609 and 1004 of the MPC, 53 P.S. §§ 10609 and 11004, and requested a hearing. The Board refused the request on the ground that the application did not comply with the requirements of Section 1004 for initiating the challenge before the governing body. The Phelans thereupon filed in the court below, to the term and number of their appeal from the refusal of the variance, a petition for a rule on the zoning hearing board to show cause why Section 2511.1 should not be declared unconstitutional. The rule was granted. At this point, the township intervened in the court proceedings and both the township and the zoning hearing board filed ...