Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Provincial Investment Company v. Lower Gwynedd Township and Board of Supervisors of Lower Gwynedd Township, No. 76-13899.
Jeremiah J. Cardamone, with him Curtis Wright, and Timoney, Knox, Hasson & Weand, for appellants.
J. Peirce Anderson, with him Kane, Pugh, Anderson, Subers & McBrien, for appellee.
Gregory S. Gehn, with him Stanford S. Hunn, and Stanford S. Hunn Associates, for intervenor.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and MacPhail. Judges Mencer and Craig did not participate. Opinion by Judge Blatt.
[ 39 Pa. Commw. Page 548]
This is an appeal by Lower Gwynedd Township and the Board of Supervisors of the Township (Township) from an order of the Court of Common Pleas of Montgomery County which declared the Township's zoning ordinance unconstitutional because of its failure to make provision for townhouses.
On August 14, 1975, the Provincial Investment Company (Provincial), the owner of a 111-acre tract in the Township, submitted a proposed curative amendment alleging that its existing ordinance failed to provide for the construction of townhouses and requesting the creation of a townhouse district. It also requested that its property be rezoned so as to be included in a townhouse district.*fn1 After extensive public hearings, the Board of Supervisors (Board) denied the request on the grounds (1) that on August 13, 1975, one day before Provincial submitted its proposed amendment and request for rezoning the Board resolved to consider an ordinance which would provide for the building of townhouses in certain districts and so there was a pending ordinance (Ordinance 139) at the time of Provincial's request and this obviated the need for the curative amendment, (2) that in any event the prior ordinance did not fail to provide for townhouses within the Township and (3) that the construction of the proposed townhouses would be injurious
[ 39 Pa. Commw. Page 549]
to the public health, safety and welfare of the Township. On appeal, the Court of Common Pleas of Montgomery County took no additional evidence but held that Ordinance 139 was not pending at the time of Provincial's request and that the prior ordinance was exclusionary in that it made no provision for townhouses and was therefore unconstitutional. This appeal followed.
Because the court below received no additional evidence on appeal, our review is confined to a determination of whether or not the Board abused its discretion, committed an error of law, or made findings not supported by substantial evidence. Waynesboro Corporation v. The Easttown Township Zoning Hearing Board, 23 Pa. Commonwealth Ct. 137, 350 A.2d 895 (1976). Moreover, the issue as to whether or not townhouse development falls within any of the categories specified in the ordinance is a question of law and therefore subject to our review. Berger v. Board of Supervisors, 31 Pa. Commonwealth Ct. 386, 376 A.2d 296 (1977).
We will consider first the issue of the pending ordinance. A pending ordinance which serves to correct defects in an otherwise invalid zoning ordinance and which is validly pending at the time of the filing of a curative amendment may serve as a justification for a municipality's denial of a proposed curative amendment. Highway v. East Whiteland Township, 28 Pa. Commonwealth Ct. 313, 368 A.2d 914 (1977). And an ordinance is "pending" when a governing body "proposes or resolves to consider a new zoning ordinance, makes the proposal open to public inspection and advertises that the proposal will be considered at a ...