Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of FPA Corporation from the Decision of the Board of Supervisors of Newtown Township, No. 72-11371A-03-6; and In Re: Appeal of FPA Corporation from the Decision of the Newtown Township Zoning Hearing Board, No. 74-3124-08-5.
Richard P. McBride, with him C. David Krewson, and Stuckert, Yates & Krewson, for appellant.
Robert A. Godwin, with him Timby & Godwin, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
[ 25 Pa. Commw. Page 222]
In Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), our Supreme Court held a zoning ordinance which
[ 25 Pa. Commw. Page 223]
failed to provide for multi-family housing, in that case apartment structures, to be unconstitutional. In Camp Hill Development Co., Inc. v. Zoning Board of Adjustment of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1973), this Court held that the Girsh principle applied equally to townhouses. In Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 328 A.2d 464 (1974), our Supreme Court held that the "pending ordinance rule" -- that an application for a building permit cannot be refused on the ground of a later enacted zoning amendment unless the municipality had made a sufficient public declaration of its intent to amend before the application was made*fn1 -- was also applicable to applications to use land for purposes allegedly unconstitutionally excluded by zoning restrictions. Hence, the land developer who files an application to use land contrary to unconstitutional zoning regulations may not be denied such on the ground that the municipality has subsequently cured the objectionable feature of its regulations unless the municipality made a sufficient public declaration of its intent to amend prior to the developer's application.
[ 25 Pa. Commw. Page 224]
The appellee, FPA Corporation, prepared on a form provided by the appellant, Newtown Township, an application for a zoning permit to construct 2750 dwelling units on 461 acres of land, of which about 275 would be single family residences, about 400 would be so-called senior-citizens units, a multi-family use, and the balance of about 2085 would be apartments and townhouses. A narrative attached to the application recites that the density proposed was six dwelling units per acre and that the units would be constructed at the rate of 300 units per year. Provision was also made for open space and recreational facilities. This application was filed with the township Page 224} zoning officer on June 30, 1972, a time when under the Newtown Township Zoning Ordinance the only permitted residential use was for single family dwellings on 40,000 square feet lots. The zoning officer refused the application and FPA appealed to the Zoning Hearing Board pursuant to Section 801 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, the means then provided for making substantive challenges to the validity of the ordinance.*fn2 The Zoning Hearing Board after many hearings affirmed the zoning officer's action. FPA appealed to the Court of Common Pleas of Bucks County which, by a very able opinion by Judge Arthur B. Walsh, reversed the Board and remanded the record to the Board of Supervisors for further proceedings and review with respect to other sources of township control.*fn3
The appellee township's principal argument is that it made sufficient public declaration of an intention to amend its zoning regulations prior to June 30, 1972, the date on which FPA applied for a zoning permit. It bases its claim on the facts that:
(1) In March 1972 the township had caused to be advertised public notice of its intention to consider an amendment of its zoning ordinance so as to provide for a townhouse-apartment zone. It appears that this amendment would have allowed ...