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GEORGE N. HIGHLEY AND DREXEL BUILDERS v. EAST WHITELAND TOWNSHIP (01/24/77)

decided: January 24, 1977.

GEORGE N. HIGHLEY AND DREXEL BUILDERS, INC.
v.
EAST WHITELAND TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Chester County in case of George N. Highley and Drexel Builders, Inc. v. East Whiteland Township, No. 4 October Term, 1975.

COUNSEL

John R. Padova, with him Solo & Padova, for appellant.

Ronald M. Agulnick, with him Agulnick, Talierco, McShane & Supplee, for appellees.

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

Author: Crumlish

[ 28 Pa. Commw. Page 314]

The Board of Supervisors (Board) of East Whiteland Township (Appellant) dismissed the petition for a curative amendment of George Highley and Drexel Builders (Appellees) which was filed pursuant to Section 609.1 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10609.1. Appellees' consequent appeal to the Court of Common Pleas was sustained. This appeal followed.

The petition for a curative amendment, filed on May 30, 1975, alleged that Appellant's zoning ordinance was unconstitutional in its failure to provide for condominium town houses and row houses. The proposed amendment sought to remedy this by placing high density use in a low density area. Two public hearings were held on Appellees' petition. Subsequent thereto, the Board rejected Appellees' curative amendment finding that a zoning ordinance was legally pending at the time of the filing of the curative amendment.

[ 28 Pa. Commw. Page 315]

In reversing the Board, the court below wrote:

The Township cannot take refuge in the pending ordinance doctrine since, at best, consideration was being made of a comprehensive plan; and the period of time, well in excess of two years, goes beyond the bounds of reason on this record.

We affirm the court below.

The chronological order of events in this case is crucial to our disposition. In 1966, Appellant adopted a zoning ordinance which, as amended, remained in effect until repealed by an ordinance adopted in 1975. In February of 1973, a planning study was made public by Appellant's Planning Commission (Commission). In March of 1973 the Commission held an informal public meeting. On April 19, a notice appeared in the local newspaper that the Commission would be holding a public hearing on May 7 to consider the proposals. A hearing was held on that date to consider both the proposed comprehensive plan and zoning ordinance. On November 16, 1973, the Commission submitted its draft of the proposed comprehensive plan and zoning ordinance to the Board. Beginning on September 11, 1974, the Board conducted public hearings with respect to the comprehensive plan. The plan was adopted on May 12, 1975. On May 30, the proposed curative amendment was filed. The Board published notices on July 12 and July 19 of an intention to hold a hearing on the proposed ordinance on August 7, 1975. An ordinance was subsequently adopted on September 2, 1975 and on September 29, Appellant announced its rejection of the proposed curative amendment.

The petition accompanying Appellees' proposed curative amendment alleged that Appellant's 1966 zoning ordinance was ...


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