Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Shuttle Development Corporation v. The Township of Upper Dublin, No. 73-08455.
John P. Knox, with him John F. Gaffney and Timoney, Knox, Avrigian & Hasson, for appellant.
Raymond Jenkins, with him Mabel D. Sellers, and Jenkins and Acton, P.C., for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Judge Crumlish, Jr. concurred in the result.
[ 19 Pa. Commw. Page 511]
This is an appeal by Shuttle Development Corporation (Shuttle) from an order of the Court of Common Pleas of Montgomery County affirming a decision of the Upper Dublin Township Board of Commissioners (Board) which denied Shuttle's application for rezoning and refused to adopt Shuttle's proposed curative amendment
[ 19 Pa. Commw. Page 512]
to the Upper Dublin Township (Township) Zoning Ordinance.
On January 22, 1973, Shuttle submitted an application to the Board requesting that the Board hold a public hearing to consider an amendment to the township zoning ordinance which would rezone Shuttle's land, consisting of approximately 16.7 acres, to permit the construction of a high-rise apartment development.*fn1 Shuttle's application was presented on alternate grounds. The first was a request for rezoning "pursuant to the provisions to amend a zoning ordinance contained in Section 609 [53 P.S. § 10609] of the Pennsylvania Municipalities Planning Code [M.P.C.], as amended."*fn2
The second basis for Shuttle's application for rezoning was "[a] challenge on substantive grounds to the validity of the present zoning classification and zoning map, pursuant to provisions of Section 609.1 [53 P.S. § 10609.1] of the Pennsylvania Municipalities Planning Code [M.P.C.], as amended, . . . ."*fn3 Shuttle submitted a curative amendment and plans for his proposed development with his application as required by Section 1004.
Unfortunately, our careful reading of Shuttle's application and the transcript of the hearing on the application
[ 19 Pa. Commw. Page 513]
before the Board compels the conclusion that this is yet another zoning case in which the proper procedure under the M.P.C. was not followed. We, therefore, affirm the lower ...