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J. RICHARD FRETZ AND ELIZABETH FRETZ v. HILLTOWN TOWNSHIP BOARD SUPERVISORS (12/09/75)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 9, 1975.

J. RICHARD FRETZ AND ELIZABETH FRETZ, HIS WIFE, APPELLANTS
v.
HILLTOWN TOWNSHIP BOARD OF SUPERVISORS, APPELLEE

Appeal from the Order of the Court of Common Pleas of Bucks County in case of J. Richard Fretz and Elizabeth Fretz, his wife, v. Hilltown Township Board of Supervisors, No. 73-3958-03-6.

COUNSEL

Charles S. Wilson, with him Charles S. Wilson & Associates, for appellee.

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

Author: Mencer

[ 22 Pa. Commw. Page 277]

Appellants, J. Richard Fretz and Elizabeth Fretz, are owners of a tract of land comprising some 67.77 acres in Hilltown Township, Bucks County. They appeal to this Court from the decision of the Court of Common Pleas of Bucks County dismissing their appeal from a decision of the Board of Supervisors of Hilltown Township (Board). The Board denied appellants' petition to have their land rezoned to permit the construction of multifamily dwellings. We are constrained to affirm, though

[ 22 Pa. Commw. Page 278]

    on different grounds, the dismissal of this appeal by the court below.

On January 4, 1973, appellants entered before the Board a document entitled:

"PETITION OF PROPERTY OWNERS FOR CHANGE IN ZONING MAP UNDER ARTICLE XV, AMENDMENT SECTION 1500 OF THE ZONING ORDINANCE OF 1970."*fn1

In this petition they stated:

"3. Your petitioners request that the premises hereinbefore described be rezoned and be designated as a MF Residential District." (Emphasis supplied.)

The Board, after a hearing held on April 12, 1973, denied this request on April 21, 1973. Appellants sought review by the court below on the ground that the ordinance in question was invalid.

[ 22 Pa. Commw. Page 279]

The section of the Pennsylvania Municipalities Planning Code (MPC)*fn2 which allows substantive challenges to the validity of a zoning ordinance is Section 1004, 53 P.S. § 11004, which provides in pertinent part:

"(1) A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either:

"(a) To the zoning hearing board for a report thereon under section 910 [53 P.S. § 10910] or 913.1 [53 P.S. § 10913.1]; or

"(b) To the governing body together with a request for a curative amendment under section 609.1 [53 P.S. § 10609.1]." (Emphasis supplied.)

This is the exclusive mode for challenging the validity of an ordinance on substantive grounds under the MPC. Section 1001, 53 P.S. § 11001. See Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975).

At no time before the Board did the appellants urge that the ordinance was invalid. Indeed, no mention of the alleged unconstitutionality of the zoning ordinance was raised until the appeal to the Court of Common Pleas.

We therefore conclude that the petition in question was not a substantive challenge to the validity of an ordinance under Section 1004(1)(b) of the MPC but was, rather, a simple petition to rezone. This conclusion is further strengthened by the fact that no curative amendment pursuant to Section 609.1 of the MPC, 53 P.S. § 10609.1, appears in the record. Had the challenge to the ordinance been made under Section 1004(1)(b), the submission of such an amendment would have been required by Section 1004(2)(d), 53 P.S. § 11004(2)(d).

[ 22 Pa. Commw. Page 280]

This case is, accordingly, within the ambit of our decision in Board of Supervisors of Ferguson Township v. Strouse, 16 Pa. Commonwealth Ct. 143, 328 A.2d 177 (1974), in which we held that the refusal of a municipal governing body to rezone was not subject to review by this or any other court.

We have recently had occasion to discuss our rationale for this principle in Board of Commissioners of McCandless Township v. Beho Development Co., Inc., 16 Pa. Commonwealth Ct. 448, 452, 332 A.2d 848, 851 (1975):

"A request for rezoning calls upon a local governing body, acting in its legislative role, to consider whether or not rezoning is in the best interest of the community. A 'challenge' pursuant to Section 1004(1)(b), 53 P.S. § 11004(1)(b), on the other hand, requires the governing body to act, in effect, as a quasi-judicial body and consider the legal merits of the challenge to the validity of the ordinance." (Citing Ellick, supra.)

The importance of differentiating between these roles is amply demonstrated in the instant case. Since the Board at all times assumed it was dealing with a petition to rezone, almost all the testimony received at the hearing of April 12, 1973 dealt with the advisability of granting this change in the zoning map rather than with the constitutionality of the ordinance.

Neither this Court nor the Court of Common Pleas of Bucks County has the power to review the Board's refusal to rezone.

Order affirmed.

Disposition

Affirmed.


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