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BUCKS COUNTY HOUSING DEVELOPMENT CORPORATION v. TOWNSHIP PLUMSTEAD (06/30/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 30, 1976.

BUCKS COUNTY HOUSING DEVELOPMENT CORPORATION, APPELLANT
v.
TOWNSHIP OF PLUMSTEAD, APPELLEE

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Bucks County Housing Development Corporation v. Township of Plumstead, No. 73-9618-03-6.

COUNSEL

George T. Kelton, with him Thomas J. Profy, III, and Begley, Carlin, Mandio, Kelton and Popkin, for appellant.

George M. Bush, with him Hartzel and Bush, for appellee.

Frank J. Earnheart, with him Robert C. J. McKinstry, and Frederick J. Rarig, for amicus curiae, Plumstead Township Civic Association.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case.

Author: Crumlish

[ 25 Pa. Commw. Page 355]

Bucks County Housing Development Corporation (Appellant) appeals an opinion and order of the Court of Common Pleas which affirmed Plumstead Township's (Appellee) Board of Supervisors' action in rejecting the tentative proposal for a Planned Residential Development (PRD).

We affirm.

Pivotal in this appeal is the common law doctrine of pending ordinance.*fn1 It is the settled law of this Commonwealth that a permit can be denied if, at the

[ 25 Pa. Commw. Page 356]

    time of the application, there is pending an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought. Boron Oil v. Kimple, 445 Pa. 326, 284 A.2d 744 (1971); Hertrick's Appeal, 391 Pa. 148, 137 A.2d 310 (1958).

Appellant contends that the pending ordinance doctrine does not apply to this application because at the time of submission of the PRD, there had not been sufficient public declaration by Appellee that it had resolved to consider a particular rezoning scheme. Boron Oil, supra. Additionally, it argues that the proposed ordinance was specifically aimed to exclude its application; and therefore, the trial court erred when it refused to consider the constitutional issue. We disagree.

There is no merit to Appellant's argument that stricter provisions of Section 508 of the Municipalities Planning Code*fn2 (MPC) control this application for a PRD and that the common law doctrine of pending ordinance is not applicable. This section provides that: "All applications for approval of a plat (other than those governed by Article VII)" (Emphasis added.) are within the purview of this Article. This application and ordinance involve a planned residential development, clearly under the regulation of Article VII of the MPC. See Cohen v. Ford, 19 Pa. Commonwealth Ct. 417, 339 A.2d 175 (1975). Consequently, this eliminates consideration of Section 508 of the MPC, 53 P.S. § 10508.

An ordinance is not pending until the legislative body purposes or resolves to consider it, makes the proposal open to the public for inspection and advertises that it will be considered at a forthcoming public meeting. Lower Southampton Township v. B.P. Oil Corp., 16 Pa. Commonwealth Ct. 108, 329

[ 25 Pa. Commw. Page 357]

A.2d 535 (1974). Accordingly, we conclude that the trial court was correct in its findings of fact and conclusions of law that the amending ordinance was pending at the time Appellant filed its application for tentative approval of the PRD.*fn3

[ 25 Pa. Commw. Page 358]

Further, Section 1004 of the MPC, 53 P.S. § 11004, dictates the procedure which Appellant must follow when it challenges the constitutionality of the zoning ordinance. We will not accept Appellant's argument and bypass the mandate of the MPC for convenience and expediency. In refusing to take testimony as to the constitutionality of the ordinance, the trial court did not in any way pass on that issue. Appellant initiated this action pursuant to Section 1006(1)(b) of the MPC, 53 P.S. § 11006(1)(b), which provides for review of applications, decisions and orders not involving the validity of an ordinance. Appellants would have us bootstrap them into a position which

[ 25 Pa. Commw. Page 359]

    they did not see fit to bring themselves. This will not do. The General Assembly was unequivocal in enunciating Sections 1004 and 1006 of the MPC and we will not tamper with them. Therefore, the trial court properly concluded that it lacked jurisdiction.

Affirmed.

Judge Kramer did not participate in the decision in this case.

Disposition

Affirmed.


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