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EDWARD J. LEWIS AND DONALD SOFFER v. PINE TOWNSHIP AND PINE TOWNSHIP BOARD SUPERVISORS. PINE TOWNSHIP CITIZENS' ASSOCIATION (12/15/76)

decided: December 15, 1976.

EDWARD J. LEWIS AND DONALD SOFFER, TRADING AS OXFORD DEVELOPMENT COMPANY, A PARTNERSHIP
v.
PINE TOWNSHIP AND PINE TOWNSHIP BOARD OF SUPERVISORS. PINE TOWNSHIP CITIZENS' ASSOCIATION, DAVID E. GRAF, EDMUND VALENTINE AND RUTH WARD, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Edward J. Lewis and Donald Soffer, trading as Oxford Development Company, a partnership v. Pine Township and Board of Supervisors of Pine Township, No. GD 76-05149.

COUNSEL

Marvin A. Fein, for appellants.

David W. Craig, with him Victor R. Delle Donne, and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellee.

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

Author: Rogers

[ 27 Pa. Commw. Page 575]

On February 19, 1975, the Pine Township Board of Supervisors adopted Zoning Ordinance No. 90, rezoning land owned by the appellee, the Oxford Development Company (Oxford) so as to permit commercial development of Oxford's land.*fn1 On March 18,

[ 27 Pa. Commw. Page 5761975]

, the appellants, the Pine Township Citizens' Association and individuals, owners of property in the township, filed an appeal with the Zoning Hearing Board of Pine Township challenging Zoning Ordinance No. 90 on substantive grounds. This appeal was dismissed by the Board on June 3, 1975 on the ground that it had no jurisdiction until a permit should be issued. See Roeder v. Hatfield Borough Council, 439 Pa. 241, 266 A.2d 691 (1970). On August 28, 1975, Oxford filed an application for zoning, grading and preliminary subdivision approval. The appellants filed a second appeal with the Zoning Hearing Board on September 16, 1975 again substantively attacking Zoning Ordinance No. 90. This appeal was dismissed on November 13, 1975 for the same reason as was their first appeal. The appellants filed a third appeal with the Zoning Hearing Board on October 23, 1975. No action was taken by the Zoning Hearing Board on this appeal because the appellants failed to pay a filing fee. On or about June 25, 1975, the appellants had appealed the action of the Zoning Hearing Board in dismissing their appeal of June 3, 1975 to the Court of Common Pleas of Allegheny County. On December 1, 1975, the Pine Township Board of Supervisors adopted a resolution granting Oxford's application for zoning approval of its project, and on December 29, 1975 Oxford and Pine Township executed and entered into a development agreement.

Pursuant to a petition by Oxford, the Court of Common Pleas of Allegheny County on February 12, 1976 entered its order pursuant to Section 916 of the Pennsylvania Municipalities Planning Code (MPC),*fn2 requiring the appellants to file bond monthly in the amount of $9240 as a condition to pursuing its zoning appeal of the June 3, 1975 Board decision. The appellants

[ 27 Pa. Commw. Page 577]

    failed to post bond and the appeal was dismissed. The appellants appealed this action to the Commonwealth Court. Their appeal was dismissed by this Court on August 24, 1976 by reason of the appellants failure to comply with our order directing the appellants to file brief on or before July 16, 1976.

On February 2, 1976 and March 1, 1976, a newly constituted Pine Township Board of Supervisors purported to pass resolutions; (1) voiding the agreement of December 29, 1975 between the township and Oxford; and (2) revoking the zoning, grading and subdivision approval granted to Oxford on December 1, 1975. On March 8, 1976, Oxford filed a complaint in mandamus seeking to compel the township and its officers to confirm and issue confirmation of their December 1, 1975 approval of Oxford's plan and of the agreement of December 29, 1975, between the township and Oxford. On April 26, 1976, the lower court entered peremptory judgment in favor of Oxford and against the township. The court ordered the issuance of the permits and the approval of the development, and the confirmation of the agreement between the Township and Oxford; it also struck down the resolutions of February 2 and March 1, 1976.

On May 14, 1976, the appellants filed their petition to intervene as parties defendants in the mandamus action, stating their intention to move for the opening of the peremptory judgment. The court below refused ...


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