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ALFRED PERLSTEIN v. BOROUGH MONROEVILLE. ALFRED PERLSTEIN (07/29/76)

decided: July 29, 1976.

ALFRED PERLSTEIN
v.
BOROUGH OF MONROEVILLE. ALFRED PERLSTEIN, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Alfred Perlstein v. Borough of Monroeville, No. SA 305 of 1974.

COUNSEL

Richard L. Rosenzweig, with him Rosenzweig & Rosenzweig, for appellant.

John D. Finnegan, with him Martin and Finnegan, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 25 Pa. Commw. Page 490]

This appeal presents a factual situation very close to that of In Re: Appeal of FPA Corporation, 25 Pa. Commonwealth Ct. 221, A.2d (1976), except that in the instant case the lower court sustained a borough's refusal to adopt a curative amendment proposed by a landowner, challenging the validity of a borough's ordinance, whereas in FPA Corporation the lower court allowed the landowner to proceed. We reverse.

[ 25 Pa. Commw. Page 491]

Alfred Perlstein (Perlstein) is the owner of 94 acres of land situated in the Borough of Monroeville (borough) in an "S Conservancy" zoning district. On March 8, 1974, Perlstein filed his challenge to the borough zoning ordinance along with a request for a curative amendment 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, 11004, claiming that there was an unconstitutional total prohibition of townhouse use within the borough and that the "S Conservancy" district classification served to confiscate private property and was contrary to the community development objectives of the borough.*fn1

Perlstein alleged that the adoption of his proposed amendment would cure these defects; the borough disagreed and refused to adopt the curative amendment. On appeal, the lower court took testimony, made its own findings of fact and conclusions of law, and sustained the borough's refusal to adopt the amendment. The lower court held that the allegation of confiscation and nonconformity to the community development objectives should properly be pursued as a variance request under Section 912 of the MPC, 53 P.S. § 10912, and that the pending ordinance doctrine applied to cure the exclusion of townhouse uses.

This appeal followed. Since we dispose of this appeal on the basis that the pending ordinance doctrine does not apply, we have no need to reach the issue of whether it was proper for Perlstein to pursue his confiscation argument via Section 1004 of the MPC, 53 P.S. § 11004.*fn2

[ 25 Pa. Commw. Page 492]

Perlstein submitted his curative amendment and challenge on March 8, 1974. He was seeking to develop his tract with 667 multi-family units, 275 of which would be townhouses, and approximately 72% of the tract would be preserved in its natural state.

When he filed his challenge, multi-family uses were permitted in other zoning districts but townhouses were prohibited everywhere in the ...


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