Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Valley Forge Plaza Associates v. Board of Supervisors of Upper Merion Township, No. 74-12467.
Clarke F. Hess, with him Butera & Detwiler, for appellants.
Gregory J. Dean, with him James E. Meneses, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Judge Kramer did not participate in the decision in this case.
[ 24 Pa. Commw. Page 586]
Valley Forge Plaza Associates, a land developer, has appealed from an order of the Court of Common Pleas of Montgomery County dismissing its appeal from what the appellant asserts was a decision of the Board of Supervisors of Upper Merion Township to reject a land development plan. The appellant says that its plan was
[ 24 Pa. Commw. Page 587]
rejected by the Supervisors because of its nonconformity with a zoning regulation enacted after the plan was filed, contrary to the provision of Section 508(4) of The Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508(4). See Monumental Properties, Inc. v. Township of Whitehall, 11 Pa. Commonwealth Ct. 105, 311 A.2d 725 (1973).
The appellant desired to develop land by the construction of a building more than 85 feet in height in Upper Merion's AR-1 zoning district. On July 8, 1974, the Upper Merion Board of Supervisors announced its intention to amend its zoning ordinance by restricting the height of structures in certain districts, including the AR-1 district, to a maximum of 85 feet. On July 25, 1974 and August 1, 1974, notices that the Board would consider the proposed amendment at a public meeting on August 12, 1974 were duly published in a local newspaper.
On July 30, 1974, an architect employed by the appellant spoke by telephone with a township building inspector concerning the effect, if any, the proposed amendment would have on his client's development plan, allegedly prepared on July 24, 1974. The building inspector, after consulting with the township solicitor, returned the architect's call and informed the latter that the proposed amendment, if enacted, would have no effect on those projects for which land development plans had already been filed with the township but that he would not accept nonconforming plans because of the pendancy of the zoning amendment. On August 12, 1972, as scheduled, the Board of Supervisors considered and adopted the amendment providing a maximum height limitation of 85 feet in the AR-1 district.
On August 19, 1974, Mr. Shaeffer appeared at the Upper Merion Township Building with preliminary land development plans. He neither filed nor submitted the plans for review by the township authorities but requested only that the building inspector with whom he
[ 24 Pa. Commw. Page 588]
had talked on July 30, 1974 stamp a copy of the plans "denied" and to record date of the denial as July 30, 1974. The admitted purpose of this request was to "get the boss off my back" and to mollify investors in the appellant's project. The building inspector accommodated the appellant's architect with regard to marking a copy of the plans and additionally provided a letter stating that the ...