Appeal from the Order of the Court of Common Pleas of Centre County in case of Edward E. Minshall, John T. Fisher, Chester C. Gnatt and David B. Werner, Plaintiffs v. The Board of Supervisors of Ferguson Township, Centre County, Pennsylvania, Defendant, No. 79-434.
Benjamin Novak, Novak, Donovan & Cunningham, for appellants.
Victor R. Delle Donne, Baskin and Sears, with him Ronald M. Lucas, Corneal & Lucas, and Robert B. Mitinger, Miller, Kistler & Campbell, Inc., for appellees.
President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Judge Blatt did not participate. Opinion by Judge Rogers.
[ 50 Pa. Commw. Page 542]
This is an appeal of four residents of Ferguson Township from an order of the Court of Common Pleas of Centre County refusing the prayer of their complaint in equity for a preliminary injunction restraining the Township Board of Supervisors from acting on a rezoning request of the intervening appellee, Oxford Development Company.
Ferguson is a Township of the Second Class as defined in Section 201 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65201. Its electors have adopted a Home Rule Charter, pursuant to the Home Rule Charter and Optional
[ 50 Pa. Commw. Page 543]
Plans Law, Act of April 13, 1972, P.L. 184, § 101 et seq., as amended, 53 P.S. § 1-101 et seq.
In October, 1978 Oxford filed a request with the Board of Supervisors for rezoning of land owned by intervening appellee Dreibelbis Family Partnership, which land Oxford had under option to purchase. Oxford's proposal would permit it to construct a shopping mall on this property. The appellants, opposed to Oxford's plans, proposed to the Board of Supervisors a rezoning which would totally prevent accomplishment of Oxford's proposal. To this end, the appellants in December, 1978 commenced initiative proceedings pursuant to the Section 9.03A of the Township's Home Rule Charter, which provides in pertinent part:
All qualified electors of the Township shall have the power to propose ordinances to the Board in accordance with the provisions of this Charter and to adopt or reject the proposed ordinance at a municipal election if the Board fails to adopt said ordinance without change in substance.
The appellants asked the Board to provide them with forms of petitions for signing by the qualified electors so that the matter of the rezoning amendment might be placed on the ballots. In early January, 1979 the Board, on advice of counsel, informed the appellants that the forms would not be furnished because the Home Rule Charter initiative procedures were not an available means of making zoning changes by Section 302(a)(10) of the Home Rule Charter Act, 53 P.S. § 1-302(a)(10), added by the Act of July 3, 1974, P.L. 421, § 3, which provides in pertinent part:
The home rule charter adopted in accordance with the provisions of this act shall not give any power or authority to the municipality contrary to, or in limitation or enlargement of ...