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HAROLD M. DAVIS AND NICHOLAS V. MARTEL v. BOARD SUPERVISORS EASTTOWN TOWNSHIP (11/10/77)

decided: November 10, 1977.

HAROLD M. DAVIS AND NICHOLAS V. MARTEL
v.
BOARD OF SUPERVISORS OF EASTTOWN TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Chester County in case of Harold M. Davis and Nicholas V. Martel v. Board of Supervisors of Easttown Township, No. 50 August Term, 1975.

COUNSEL

William H. Rivoir, Jr., with him John S. Halsted, and, of counsel, Gawthrop & Greenwood, for appellant.

John C. Snyder, with him Robert W. Lentz, and, of counsel, Lentz, Riley, Cantor, Kilgore & Massey, Ltd., for appellees.

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

Author: Wilkinson

[ 32 Pa. Commw. Page 344]

This appeal presents us with another question of the proper construction to be given the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101 et seq. The issue for decision is when an application for a land development plan is denied approval for failure to comply with a township zoning ordinance, which ordinance has previously been declared unconstitutional, is an appeal from the denial governed by Section 1006 of the MPC, 53 P.S. § 11006, rather than Section 1004, 53 P.S. § 11004? The lower court held that it was, and we affirm.

[ 32 Pa. Commw. Page 345]

The facts in this case have been stipulated to by the parties. On March 7, 1975, the Court of Common Pleas of Chester County, in Waynesborough Corp. v. Easttown Township Zoning Hearing Board, 23 Chester 366 (1975), aff'd, 23 Pa. Commonwealth Ct. 137, 350 A.2d 895 (1976), held unconstitutional the provisions of the Easttown Township Zoning Ordinance which prohibited multiple-family dwellings in all areas of the township except a small AOR (Apartment-Office-Research) District. On March 19, 1975, the appellees filed a land development plan proposing the construction of 118*fn1 townhouse units in the AA and A zoning districts of the township, which were, under the terms of the invalid zoning ordinance, limited to single-family dwellings.

This proposed plan was eventually rejected by the Easttown Township Board of Supervisors on July 7, 1975, for failure to comply with the township zoning ordinance. During the interim between submission and rejection of the plan, a series of public meetings were held to consider a new zoning ordinance that would increase the land area allowed for multi-family use. The first advertisement for these meetings appeared in the local paper on March 20, 1975, just one day after the submission of appellees' plan. The appellees' tract of land was originally included within a proposed multi-family dwelling zone, but this tract was deleted at the June 2, 1975 Board of Supervisors' meeting. It was at this meeting that a new zoning ordinance was adopted.

Following township disapproval, the appellees appealed to the Court of Common Pleas of Chester County. After the submission of briefs, that court remanded the case to the Board of Supervisors to complete the record. This was accomplished through

[ 32 Pa. Commw. Page 346]

    a stipulation agreed to by the parties. The lower court then rendered its opinion, which ordered the Board of Supervisors to give approval to the appellees' plan. The township then appealed to this Court, arguing that the lower court did not have jurisdiction since the appeal was brought under Section 1006 of the MPC rather than Section 1004.

We agree with the lower court that there is no doubt but that the appeal in question lies under Section 1006 of the MPC. Section 1006 is the proper avenue for bringing a land development appeal in a case where there is no question as to the validity of an ordinance. Section 1004, on the other hand, is the proper route for appealing a challenge to the substantive validity of an ordinance in ...


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