Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Harriet B. Kravitz v. Whitemarsh Township, No. 77-07853.
Clarke F. Hess, with him H. Kenneth Butera, Stuart N. Cohen, and, of counsel, Butera, Hess, Beausang & Moyer, for appellant.
John G. Kaufman, with him Edward J. Hughes; Bean, DeAngelis & Kaufman, P.C.; Moris Gerber, and Gerber, Maerz, Wilenzik & Shields, for appellee.
John P. Trevaskis, Jr., with him Robert S. Bennett, Jr., for amicus curiae, Whitemarsh Township Planning Commission.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Blatt, DiSalle and Craig. Judges Rogers and MacPhail did not participate. Opinion by Judge DiSalle.
[ 39 Pa. Commw. Page 307]
This is an appeal from a decision of the Court of Common Pleas of Montgomery County, Pennsylvania, dismissing Whitemarsh Township's (Township) motion to quash and declaring the Whitemarsh Township Zoning Ordinance (Ordinance), Whitemarsh Township, Pennsylvania, Ordinance 111 (1957), unconstitutional. We affirm.
On November 5, 1975, Harriet Kravitz (Appellee), wishing to develop a mobile home park on a certain 44.5 acre tract of land, applied to Township's Board of Supervisors (Board) for a curative amendment, attacking the constitutionality of Township's zoning scheme insofar as it allegedly prohibited mobile homes and mobile home parks anywhere in the township. Township conducted hearings on six separate occasions, and on April 1, 1977, sent a letter to Appellee advising her that it had rejected her petition and would forward written findings of fact and conclusions of law to her shortly.
Appellee received Township's letter on April 4, 1977, and appealed to the Court of Common Pleas of
[ 39 Pa. Commw. Page 308]
Montgomery County on May 3, 1977. Township filed a motion to quash, claiming that the appeal was untimely. By order dated September 13, 1977, the court dismissed Township's motion, declared the Ordinance unconstitutional, and remanded the matter to Township for further consideration, ordering that it allow Appellee to develop a mobile home park upon the tract in question, subject to certain restrictions to be imposed by Township. This appeal followed.
Turning first to the issue of the timeliness of Appellee's appeal from the Board's decision, we note that Section 1004(3) of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(3), in pertinent part provides:
(3) After submitting his challenge to the board or governing body as provided in subsections (1) and (2) of this section, the landowner may appeal to court by filing same within thirty days (i) after notice of the report of the board is issued, or (ii) after the governing body has denied the landowner's ...