Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Daniel J. Carr, Jr. and Laura G. Carr, h/w, from the Denial of a Curative Amendment Application by the Board of Supervisors of New Britain Township, No. 75-2428-07-6.
Richard P. McBride, with him Power, Bowen & Valimont, for appellants.
George M. Bush, with him Albert L. Blackman, Jr., and Hartzel and Bush, for appellee.
Jan Z. Krasnowiecki, for amicus curiae, Planning Commission of Springfield Township, Delaware County, Pa.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers.
[ 30 Pa. Commw. Page 344]
Daniel J. Carr, Jr. and Laura G. Carr, his wife, appeal from an order of the Court of Common Pleas of Bucks County affirming the rejection by the Board of Supervisors of New Britain Township of a proposed curative amendment to the township's zoning ordinance.
In 1967 and 1968, the Carrs purchased contiguous parcels of land, containing in the aggregate 12.063 acres of land in New Britain Township. At the time of purchase and thereafter until February 11, 1974, 4.7 acres of the appellants' property were located in a zoning district where commercial uses were allowed, and the remaining 7.363 acres were in a residential district. The Carrs bought the land for the purpose of consolidating their tire sales and service business which they had been conducting at three other locations. In 1967 they constructed a 9000 square foot building containing a sales area, an inventory storage area and eight service bays, to which they brought all of their operations. In 1968 they added 3600 square feet to their building in which they installed eight additional service bays. This structure stands on that part of their tract in which commercial uses are permitted.
Because their business at their new location continued to grow, the appellants, at some time in 1973 or 1974, filed with the township an application for a building permit for a further enlargement of their building. This application was rejected on the ground that a new zoning ordinance which would comprehensively rezone the township was then pending. The new ordinance, finally enacted on February 11, 1974,
[ 30 Pa. Commw. Page 345]
placed appellants' entire 12.063 acre tract in a district where only residential uses were permitted with the result that the Carrs' use of part of the tract formerly zoned for commercial use became a valid nonconforming use. The new ordinance additionally contained a provision prohibiting all expansion of any nonconforming use. On June 10, 1974, the Carrs, desiring to challenge on substantive grounds the validity of this blanket prohibition of expansion of nonconforming uses, filed a request for a curative amendment with the Board of Supervisors pursuant to Section 1004(1)(b) of the Pennsylvania Municipalities Planning Code*fn1 (MPC), 53 P.S. § 11004(1)(b). As required by Section 1004, the appellants submitted a sketch plan of their desired expansion. This plan showed a proposed 49,000 square feet addition to their existing 12,900 square feet building. They proposed that the ordinance be amended so as to permit them to expand their existing commercial use "to whatever extent appropriate to accommodate the natural growth and expansion of such nonconforming use. . . ." A series of public hearings were then conducted beginning on July 22, 1974 and concluding on January 13, 1975. On September 23, 1974 the Board of Supervisors, in apparent recognition of the constitutional infirmity of their blanket prohibition of the expansion of nonconforming uses, enacted a zoning amendment allowing by special exception the expansion of nonconforming uses to the extent of 50% of the existing use. On February 17, 1975, the Board of Supervisors responded to the Carrs' request for curative amendment by referring to its own amendment of September 23, 1974 and gave permission to an expansion of the appellants' existing building to the extent of 50% of its present size. On the Carrs' appeal, the Bucks County Court of Common
[ 30 Pa. Commw. Page 346]
Pleas, without taking additional evidence, concluded that the ordinance's blanket prohibition of expansion of nonconforming uses was indeed invalid but dismissed the appeal on the ground that the township's amendment of September 23, 1974 was a reasonable response to the Carrs' request and that it cured any infirmity of the original ordinance.
The appellants say that on an appeal from a governing body's denial of the request for curative amendment as proposed by a landowner, the lower court should initially determine whether the challenged provision is unlawful; and that, if the provision is found to be invalid, the court should decide whether the use proposed by the landowner is reasonable. They further contend that the court should pay no regard to any amendments enacted by the governing body which were not corrected or not pending at the time the landowner's challenge was submitted pursuant to Section 1004 of the MPC. We agree with this position.*fn2
In Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975), Judge Kramer carefully and thoroughly considered the provisions and many of the implications of Section 1004 and it is here ...