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PINE TWP. CITIZENS' ASSN. v. ARNOLD

July 5, 1978

PINE TOWNSHIP CITIZENS' ASSOCIATION, EDMUND VALENTINE, Trustee Ad Litem and DAVID E. GRAF, EDMUND VALENTINE and RUTH WARD, Individuals, Plaintiffs,
v.
GENE E. ARNOLD, DAVID FIGGINS and JOHN SHAW, Members of the Pine Township Zoning Hearing Board, Defendants


Cohill, J.


The opinion of the court was delivered by: COHILL

COHILL, J

 This action was filed on June 18, 1976 by the Pine Township Citizens' Association, an unincorporated association of residents, landowners, taxpayers and voters of Pine Township, Allegheny County, Pennsylvania and three individual members of this Association. Defendants are three members of the Zoning Hearing Board of Pine Township. Plaintiffs seek an injunction against the deprivation, under color of the law of the Commonwealth of Pennsylvania, of their rights and privileges under the United States Constitution. This action seeks a declaratory judgment declaring as repugnant to the Constitution of the United States certain statutes of the Commonwealth of Pennsylvania, namely Sections 916 and 1005 of the Pennsylvania Municipalities Planning Code, 53 P.S. 10916 and 11005, which require respectively that an appeal before a zoning hearing board from a zoning decision (one made by the township supervisors) proceed only after appellants provide a bond and after the issuance of a development permit. Plaintiffs also seek an injunction to restrain the use, enforcement, execution and application of said statutes by enjoining the defendant members of the Zoning Hearing Board of Pine Township to hear plaintiffs' appeals from zoning decisions of the township's Board of Supervisors without applying the bond and permit requirements of such allegedly unconstitutional statutes.

 Plaintiffs seek the empanelment of a statutory three-judge court pursuant to 28 U.S.C. §§ 2281 et seq. Since this action was filed on June 18, 1976 it falls within the purview of the pre-August 12, 1976 provisions of 28 U.S.C. §§ 2281 et seq.

 Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1343, 2201, 2202, 2281; 42 U.S.C. §§ 1983, 1985; and the 14th Amendment to the United States Constitution.

 This matter is before the court on motions to dismiss filed by the defendants and by the intervenor, Oxford Development Company which owns the 300 acres of land involved in this action. The court has heard argument on these motions and has received briefs from all parties.

 I.

 On February 19, 1975, the Pine Township Board of Supervisors rezoned some 300 acres in the township to permit the construction of a shopping mall, which rezoning was accomplished pursuant to a duly enacted Ordinance No. 90. On March 20, 1975, plaintiffs filed a Notice of Appeal pursuant to the Pennsylvania Municipalities Code with the zoning hearing board of Pine Twp., (53 P.S. 11005), which challenged the substantive validity of Ordinance No. 90.

 On August 25, 1975, Oxford Development Company, the intervenor herein and owner of the land rezoned under Ordinance #90, submitted plans to the Pine Township Board of Supervisors and requested certain site and zoning approvals, etc. Plaintiffs on October 23, 1975 filed a Notice of Appeal with the Zoning Hearing Board, requesting a hearing on the substantive validity of Ordinance No. 90. Plaintiffs in this petition further alleged that the "landowner" had now submitted complete plans for development of the property. On December 1, 1975 the board of supervisors conditionally approved Oxford Development Company's applications. Plaintiffs thereafter amended their Notice of Appeal to include allegations as to the permit approvals.

 On or about December 22, 1975 Oxford Development Company filed a petition with the Court of Common Pleas of Allegheny County, seeking to require appellants to post bond before proceeding with the Appeal from the initial decision of the Zoning Hearing Board, that is, the decision holding that plaintiffs' Appeal of March 20, 1975 was filed prematurely. The bond sought by the intervenor also apparently was to cover the appeals then pending before the Zoning Hearing Board as of December 22nd.

 The Court of Common Pleas held hearings on the petition of Oxford Development Company, following which the plaintiffs were ordered to post a bond, the premiums for which would cost some $9,120 per month. Plaintiffs have taken appeals to the Court of Common Pleas and the Pennsylvania Commonwealth Court where said appeals were dismissed and the lower court decisions affirmed. Presently, there are no actions regarding this case in any state court.

 Plaintiffs allege that they are unable to post a bond even for the first month and that this inability resulted in the dismissal with prejudice of the appeals before the Zoning Hearing Board and the Court of Common Pleas of Allegheny County. Plaintiffs assert that to date the Zoning Hearing ...


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