Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Moland Development Company, Inc. v. Board of Supervisors Upper Frederick Township, Nos. 70-15748, 70-15751 and No. 47, June Term, 1971.
Willard C. Hetzel, with him David B. Fitzgerald, for Board.
J. Edmund Mullin, for Moland Development Company.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by Judge Wilkinson.
[ 19 Pa. Commw. Page 209]
Three appeals are consolidated here for our disposition. All revolve around one central issue: Is Upper Frederick Township Ordinance 60-1 a proper exercise of the authority granted to the Township by the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65101 et seq., or is the ordinance, as Moland Development Company (Moland) argues and the court below found, a de facto zoning ordinance, and, as such, invalid for any one of a number of reasons cited by Moland and the lower court?
On October 30, 1970, Moland submitted a plot plan and a request for a permit to construct a planned mobile home community on its 59-acre tract in Upper Frederick Township. Moland plans to provide eventually for 422 units on the tract, or approximately seven units per acre. Moland specifically requested relief from Ordinance 60-1 entitled "Upper Frederick Township Regulation of Lot Size and Sewage Disposal Ordinance of 1960." This ordinance requires, inter alia, a minimum lot size for structures used for human habitation of 31,250 square feet, approximately one building for every three-quarters of an acre.
On November 13, 1970, the Board of Supervisors of Upper Frederick Township (Township) denied Moland's request, ostensibly on the grounds that Moland's application was not in sufficient detail to enable the Township to determine whether all other parts of the ordinance had been complied with. The Township requested additional information which Moland argues would be quite expensive to produce and would be a needless waste if relief from the minimum lot size requirement was not obtained.
On December 11, 1970, Moland instituted two actions before the Court of Common Pleas of Montgomery County. The first was a petition for allowance to challenge the validity of Ordinance 60-1 pursuant to Section 801 of the Pennsylvania Municipalities Planning Code,
[ 19 Pa. Commw. Page 210]
Act of July 31, 1968, P.L. 805.*fn1 Moland's second action was a petition for an allowance of an appeal from the refusal of the application for development, pursuant to the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. § 11301 et seq.
While the above actions were being litigated, the Township was in the process of adopting and enacting a comprehensive plan and a zoning ordinance. The public meeting scheduled for the purpose of considering and approving a comprehensive plan was first publicized in a newspaper of general circulation on December 23, 1970. On January 13, 1971, the local planning commission approved the plan and on July 7, 1971, the Township adopted the comprehensive plan and zoning ordinance. Under this 1971 ordinance, Moland's property would be zoned for single family housing on lots of not less than 50,000 square feet each, or approximately one residence per one and one-quarter acres. Moland filed a complaint challenging the legality of the adoption of the comprehensive plan and zoning ordinance.
All three actions were heard together in the court below, and after a delay occasioned by unsuccessful settlement negotiations, the court, on April 1, 1974, handed down its order and opinion. The court sustained Moland's challenge to the validity of Ordinance 60-1 and ordered that Moland be permitted to proceed with its plans. The Township's appeal to this ruling is docketed at No. 523 Commonwealth Docket 1974. The court then dismissed Moland's appeal under the Local Agency Law; Moland's appeal to this ruling is ...