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BLUEBELL ASSOCIATES v. TOWNSHIP ENGINEER FOR WHITPAIN TOWNSHIP AND MANUS MCHUGH (09/12/79)

decided: September 12, 1979.

BLUEBELL ASSOCIATES, APPELLANT
v.
THE TOWNSHIP ENGINEER FOR WHITPAIN TOWNSHIP AND MANUS MCHUGH, III AND DEIDRE MCHUGH, HIS WIFE, APPELLEES. BLUEBELL ASSOCIATES V. BOARD OF SUPERVISORS OF WHITPAIN TOWNSHIP AND MANUS MCHUGH, III AND DEIDRE MCHUGH, HIS WIFE. BOARD OF SUPERVISORS OF WHITPAIN TOWNSHIP, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Montgomery County in cases of Bluebell Associates v. The Township Engineer for Whitpain Township, No. 76-12439; and Bluebell Associates v. Board of Supervisors of Whitpain Township and Manus McHugh, III and Deidre McHugh, his wife, No. 76-12692.

COUNSEL

Richard L. Bazelon, with him, of counsel, Dilworth, Paxson, Kalish, Levy & Kauffman, for Bluebell Associates.

Marc B. Kaplin, with him, of counsel, Lesser & Kaplin, for Board of Supervisors of Whitpain Township.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, DiSalle, Craig and MacPhail. Judges Rogers and Blatt did not participate. Opinion by Judge Craig. Judges Crumlish, Jr., Wilkinson, Jr. and Mencer note dissents.

Author: Craig

[ 45 Pa. Commw. Page 601]

These two appeals, consolidated for argument and consideration, are from orders of the Court of Common Pleas of Montgomery County, the appeal at No. 269 C.D. 1977 involving that court's refusal, in a mandamus action against the engineer of Whitpain Township (township), to compel the issuance of a grading permit for an airport extension, and the appeal at No. 334 C.D. 1978 concerning an order granting Bluebell Associates (applicant) approval of that same airport enlargement in a statutory zoning proceeding.

A common factual history is the basis for both cases. Applicant's airport, Wings Field, has been located on a 287-acre tract in the township since 1929. From 1950, the year the township zoning ordinance was adopted, the airport has been a legal non-conforming

[ 45 Pa. Commw. Page 602]

    use in a district zoned R-1 Residential, allowing single-family dwellings. After 1971 applicant acquired an additional 6-acre tract adjacent to the north end of the existing runway. The chief subject of the case has been applicant's proposal to lengthen the existing runway by approximately 1,000 feet over that after-acquired land, which is also zoned R-1.

By letter in 1975, applicant challenged the validity of the ordinance under Sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC).*fn1 The challenge documents duly included a plan of the proposed runway extension and a proposed curative amendment of the ordinance to create an Airport District.

After five hearings in the first half of 1976, the township's Board of Supervisors adopted a three-paragraph resolution entitled "Resolution to Wings Field" resolving that:

     the application of Blue Bell Land Associates to extend the runway of Wings Field to a maximum length of 3500 feet to be approved.

The last paragraph listed substantive details for the solicitor's guidance, including a description of area beyond applicant's land and reference to planning commission suggestions concerning limitations on air-craft size and weight and provisions for helicopters.

[ 45 Pa. Commw. Page 603]

The resolution, as is clearly indicated by its wording, did not constitute an amendment of the township's zoning ordinance.

When applicant sought a grading permit on the authority of the resolution, the township engineer, in consultation with its manager and solicitor, refused the permit on the basis that the effect of the resolution was to reject the curative amendment so that no permit could be obtained unless a zoning variance were to be obtained from the zoning hearing board.

Applicant thereupon filed a mandamus action which, after hearing, was dismissed by Judge Horace A. Davenport and a court en banc, on the ground that the resolution did not provide a clear legal ...


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