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MONTGOMERY DEVELOPMENT COMPANY AND B.C. ASSOCIATES v. BOARD SUPERVISORS PLUMSTEAD TOWNSHIP (06/05/78)

decided: June 5, 1978.

MONTGOMERY DEVELOPMENT COMPANY AND B.C. ASSOCIATES, APPELLANTS
v.
BOARD OF SUPERVISORS OF PLUMSTEAD TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Montgomery Development Company and B.C. Associates v. Board of Supervisors of Plumstead Township, No. 76-6928-08-5.

COUNSEL

John A. VanLuvanee, with him Eastburn and Gray, for appellants.

Albert L. Blackman, Jr., with him George M. Bush, and Hartzel and Bush, 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 616]

The appellants, Montgomery Development Company and B.C. Associates, filed a petition with the supervisors of Plumstead Township, Bucks County, requesting the amendment of the township zoning ordinance and map so as to rezone their 85 acre tract*fn1

[ 35 Pa. Commw. Page 617]

    from the I(Li) Limited Industrial district to C-2 Highway Commercial. The appellants additionally asked for modifications in the requirements of the C-2 Highway Commercial District. The purpose of these requirements was to make it possible to construct and operate a shopping mall on the appellants' land.

The supervisors were initially receptive to the shopping mall proposal but decided to create a new C-3 Planned Shopping Center zoning district rather than to amend the provisions of the C-2 Highway Commercial district. A draft ordinance describing the new C-3 district was prepared with the assistance of the appellants and their counsel. The draft contained a section titled "Area to be Rezoned if this Ordinance is Adopted," which consisted only of a description of the appellants' 85 acre tract.

The proposed amendment was duly advertised as proposed for adoption at a meeting to be held on January 29, 1976. The supervisors then developed misgivings concerning either the zoning change or the appellants' project and at the meeting on January 29, 1976 adopted the amendment only after deleting the section describing the appellants' tract as the area to be rezoned. During the next several months the supervisors continued their consideration of the advisability of rezoning the appellants' land as requested, assisted in technical matters by a traffic consultant.

On the afternoon of May 18, 1976 the appellants, apparently forewarned of things to come, filed a substantive challenge to the Plumstead Township zoning ordinance pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code,*fn2 alleging that by creating a new zoning classification without designating any township land to be so classified, the Board of Supervisors had created a floating zone of the kind

[ 35 Pa. Commw. Page 618]

    held to be invalid in Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A.2d 7 (1960). They suggested as a cure an amendment to the amendment reinstating the section describing their land as located in the C-3 Shopping Center district. At a scheduled meeting in the evening of May 18, 1976, the supervisors formally denied the prayer of the appellants' petition to rezone their property. The Board of Supervisors repealed the ordinance which created the new C-3 Shopping Center district on June 22, 1976 and denied the prayer of appellants' petition for a curative amendment on June 23, 1976. The ...


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