Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Robert P. Olson and Neshaminy Holding Corporation, on Assignment from Robert P. Olson, from the Decision of the Board of Supervisors of Warminster Township Upon Curative Amendment Application, No. 74-3059-03-5.
Elliot M. Drexler, with him, of counsel, Saul, Ewing, Remick & Saul, for appellant.
Richard P. McBride, with him Robert W. Valimont and Power, Bowen & Valimont, for appellees.
John Philip Diefenderfer, with him Stuckert, Yates and Krewson for amicus curiae, Centennial School District.
Lorry W. Post, with him David H. Moskowitz, Mark S. Schwartz, and William Culleton, for amicus curiae, Pennsylvania Association for Spanish-Speaking People, Inc.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
[ 19 Pa. Commw. Page 516]
This is an appeal filed by Warminster Township (Township) from an order of the Court of Common Pleas of Bucks County, directing the amendment of the Township's zoning ordinance and zoning map by the adoption of a proposed curative amendment which had been presented to the Township's governing body by Robert P. Olson and Neshaminy Holding Corporation (hereinafter collectively referred to as Olson).*fn1
In 1973 Olson was the owner of approximately 46 acres of land located in an area classified "Industrial" under the Township's zoning ordinance. On October 19, 1973, Olson filed a challenge to the validity of the zoning ordinance alleging that it failed to provide for townhouse usage anywhere in the Township. The challenge included both a proposed curative amendment to the zoning
[ 19 Pa. Commw. Page 517]
ordinance and plans depicting a proposed development of 322 townhouses on Olson's land. The challenge was filed pursuant to 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. Hearings were set and duly advertised. Prior to the hearings Olson presented more refined plans and specifications as an amendment to the challenge. In any event, hearings were held on four different evenings before the governing body of the Township beginning January 21, 1974 and concluding March 11, 1974. On April 1, 1974 the Board of Supervisors of the Township orally rendered a decision denying Olson's challenge and application for curative amendment, without making any findings of fact. Olson appealed to the court below, which did not receive any additional testimony or evidence. Based upon the record made before the governing body of the Township, and after argument, the court below, on July 16, 1974, rendered an opinion and order in which it made its own findings of fact and conclusions of law. The lower court found that the Township's zoning ordinance made no provision for townhouse development anywhere in the municipality. The court found that the zoning ordinance did provide for garden apartments which were defined in the ordinance as follows:
"A dwelling having two (2) or more dwelling units, not having party walls forming a complete separation between individual dwelling units, and not having more than two bedrooms in each dwelling unit."
The court concluded that the zoning ordinance's description of garden apartments did not provide for townhouse development which the court found to be a legitimate and proper residential use in the Township. The court noted that the Bucks County Planning Commission's report had recommended that ...