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APPEAL FRANK MERLINO FROM REFUSAL PLAINS TOWNSHIP BOARD COMMISSIONERS TO AMEND ZONING ORDINANCE. PLAINS TOWNSHIP BOARD COMMISSIONERS (05/21/75)

decided: May 21, 1975.

IN RE: APPEAL OF FRANK MERLINO FROM REFUSAL OF PLAINS TOWNSHIP BOARD OF COMMISSIONERS TO AMEND ZONING ORDINANCE. PLAINS TOWNSHIP BOARD OF COMMISSIONERS, APPELLANT


Appeal from the Order of the Court of Common Pleas of Luzerne County in case of In Re: Appeal of Frank Merlino from Refusal of Plains Township Board of Commissioners to Amend Zoning Ordinance, No. 8250 of 1973.

COUNSEL

Joseph C. Giebus, for appellant.

Hugh J. O'Connell, for appellee.

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

Author: Kramer

[ 19 Pa. Commw. Page 144]

This is an appeal filed by the Plains Township Board of Commissioners (Township) from an order dated June 13, 1974 of the Court of Common Pleas of Luzerne County sustaining an appeal of Frank Merlino (Merlino) from an order of the governing body of the Township denying Merlino's request for a rezoning of certain realty. The order of the court below also directed the governing body to rezone.

Apparently*fn1 on August 6, 1973, Merlino filed two petitions for rezoning with the Township. The first petition requested the rezoning of three acres of land owned by Merlino from R-2 to R-3 so as to permit him to develop the land for "townhouses or apartments." After a hearing before the governing body of the Township, the petition was denied. Although the opinion of the

[ 19 Pa. Commw. Page 145]

    court below discusses this particular petition, we note that Merlino did not file an appeal with the court from the denial of this petition and, therefore, it was not before the court below and is not now before this Court. We merely mention it as being part of the joint proceedings before the governing body. The second petition requested the governing body to rezone 9.25 acres of land owned by Merlino from R-1 to C-1, which would permit Merlino to utilize the land for an expansion of his existing "nursery and floral business." The record indicates that Merlino desired to construct a greenhouse on the subject land, which the record clearly shows is a culm bank or coal refuse pile formerly used by a coal company. After a hearing before the governing body, at which Merlino did not appear personally or by counsel, the governing body denied the petition.

Merlino filed an appeal with the court below and alleged that the governing body of the Township had abused its discretion because (1) Merlino urgently needed the use of the land for his business; and (2) his proposed use would be beneficial to the Township in that it would replace the existing unsightly clum bank. Merlino also alleged that the existing R-1 zoning classification, which restricted his land to residential use, capriciously required that the land be used for a purpose for which it was not suited. The lower court received additional testimony and evidence, and after hearing issued the order described above. We must reverse.

[ 19 Pa. Commw. Page 146]

In 1972 the General Assembly made extensive amendments to the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, and especially to article 10 thereof, 53 P.S. § 11001 et seq. These amendments created a great deal of confusion in the field of zoning law. As a result this Court, in recent decisions, has attempted to resolve some of the questions arising out of the 1972 amendments. See Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975) and Robin Corporation Page 146} v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975). We have noted that section 1001 of the MPC, 53 P.S. § 11001, states that:

"The proceedings set forth in this article shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of a municipality, its agencies ...


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