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APPEAL ABCON (06/02/78)

decided: June 2, 1978.

IN RE: APPEAL OF ABCON, INC. FROM DECISION OF THE BOARD OF SUPERVISORS OF HORSHAM TOWNSHIP UPON CURATIVE AMENDMENT APPLICATION. ABCON, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of Abcon, Inc. from Decision of the Board of Supervisors of Horsham Township upon Curative Amendment Application, No. 75-02248.

COUNSEL

Richard P. McBride, with him Power, Bowen & Valimont, for appellant.

J. Edward Mullin, with him Gerald Hamburg, and Hamburg, Rubin, Mullin & Maxwell, for appellee.

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

Author: Rogers

[ 35 Pa. Commw. Page 590]

Abcon, Inc. has appealed from a decision of the Montgomery County Court of Common Pleas which upheld the constitutionality of the Horsham Township Zoning Ordinance of 1969 and refused Abcon's request for curative amendment. For the reasons set forth below, we reverse.

Abcon, Inc. is the owner of a 247 acre tract of land located in the southeast corner of Horsham Township. On April 26, 1974, Abcon submitted a curative amendment application to the Board of Supervisors of Horsham Township pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11004, challenging the substantive validity of the Horsham Township Zoning Ordinance of 1969 on the basis that it made only token provision for multi-family development in general and no provision whatsoever for townhouse development within the township. At the time it submitted its challenge, Abcon's 247 acre tract was zoned R-3 Residential which permitted only single-family detached dwellings on lots of not less than 25,000 square feet provided that public water and sewer were available.

[ 35 Pa. Commw. Page 591]

Abcon's curative amendment application included a proposed ordinance which would change the zoning classification of its tract from R-3 Residential to the classification of Planned Residential Development (PRD). Abcon's development plan also submitted with the curative amendment proposed the construction of 716 one and two story townhouse units, 342 apartment units, 46 semi-detached units, and 126 single-family detached units on the 247 acre tract. After eight evenings of hearings which commenced on June 19, 1974 and concluded on December 2, 1974, the Board of Supervisors rejected the curative amendment application on February 4, 1975 without making findings of fact or conclusions of law and giving no reason for its decision. Abcon appealed to the Montgomery County Court of Common Pleas which took no additional evidence but made findings of fact and conclusions of law based upon the evidence adduced at the hearings before the Board of Supervisors. That court affirmed the decision of the Board of Supervisors in an opinion dated March 14, 1977 and it is from that decision that Abcon has appealed to this Court.

The initial question for our decision in this appeal is whether there was any ordinance pending in Horsham Township at the time Abcon filed its curative amendment application which would have cured the alleged constitutional infirmities in the Horsham Township Zoning Ordinance of 1969. Although the court below did not specifically hold that there was such an ordinance pending at this time, it did suggest that this might have been the case. We disagree. Abcon filed its curative amendment application on April 26, 1974. For approximately two years before that time, the Board of Supervisors had been informally considering the rezoning of a 170 acre tract within the township to permit development thereon of housing at

[ 35 Pa. Commw. Page 592]

    a density of seven dwelling units per acre. Formal application for this zoning change had been made on March 25, 1974 and the Board of Supervisors had, on April 2, 1974, adopted a resolution to hold a public meeting to consider the matter. However, public notice of this meeting (by advertisement) was not given until May 15, 1974, nineteen days after Abcon had submitted its challenge. An ordinance is pending only from the time the municipality has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on the rezoning. Boron Oil Co. v. Kimple, 445 Pa. 327, 284 A.2d 744 (1971). There was thus no ordinance pending in Horsham Township which would have cured the constitutional deficiencies challenged by Abcon as of April 26, 1974, the date on which Abcon's curative amendment application was filed.

Abcon asserts that the Horsham Township Zoning Ordinance of 1969 is exclusionary and thus invalid because it makes no provision whatsoever for townhouse development within the township. The court below held that the zoning ordinance did provide for townhouses and that there was thus no de jure exclusion of this use. We believe that the court below was correct in so holding. The Horsham Township Zoning Ordinance of 1969 provides for seven residential districts. Only single-family detached dwellings are permitted in the R-1 through R-4 districts on lots varying in size; the largest lot size requirements are found in the R-1 district and the smallest in the R-4 district. The R-5 district permits duplexes or double houses as well as single-family detached dwellings. It is only in the R-6 and R-7 ...


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