Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: The Appeal of Vernon Horn, Edith Horn, H & K Materials, Inc., Blooming Glen Quarry, Inc., John Haines and John Kibblehouse from the Hilltown Township Zoning Hearing Board, No. 77-1937-08-5.
John P. Knox, with him Richard T. Abell, and Timoney, Knox, Hasson & Weand, for appellant.
David M. MacFarlan, with him Charles S. Wilson & Associates, for appellee.
Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.
[ 43 Pa. Commw. Page 321]
This is the appeal of H & K Materials, Inc. from an order of the Court of Common Pleas of Bucks County dismissing its appeal from a report of the Zoning Hearing Board of Hilltown Township on the appellant's challenge to the substantive validity of the Township Zoning Ordinance pursuant to Section 1004(1)(a) of the Pennsylvania Municipalities Planning Code (MPC).*fn1
H & K, in its written request for hearing filed with the Zoning Hearing Board pursuant to Section 1004(2)(a) of the MPC, 53 P.S. § 11004(2)(a), stated as its ground for appeal the asserted unconstitutionality of the Ordinance by reason of its exclusion from the township of the following uses: quarrying, black top plants, bituminous concrete plants, batch concrete plants, asphalt manufacturing, macadam manufacturing, stone crushing operations, processing and stockpiling of crushed stone and related operations. H & K further alleged that it presently conducts quarry operations on a part of the 73 acre tract which it holds under long term lease, but that it is prevented by the Zoning Ordinance from expanding its activities to other parts of its land. It averred in this regard:
8. Petitioner intends to expand the quarrying, stone crushing, stock piling and other related uses on this property to the entire premises
[ 43 Pa. Commw. Page 322]
and intends to operate on this property all uses herein challenged as being unconstitutionally excluded.
9. Petitioner operates his present operations on this property and intends to operate any use listed in this challenge on this property in the future in accordance with all applicable local, state and federal regulations, and in a safe and non-harmful manner.
The Zoning Hearing Board, after hearings, made numerous findings of fact and, although declaring that it was not making conclusions of law, expressed its view that the ordinance did not unconstitutionally exclude any of the uses described in H & K's request for hearing. H & K filed a zoning appeal in the Court of Common Pleas. The Township then filed in Court a motion to dismiss the appeal on the ground, inter alia, of the failure of H & K to comply with Subsection 1004(2)(c) of the MPC, 53 P.S. § 11004(2)(c), which reads:
The request [written request for hearing] shall be accompanied by plans and other materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating the challenged ordinance or map in the light thereof. Nothing ...