Appeal from the Order of the Court of Common Pleas of Lehigh County in case of George R. Lieberman and Jean D. Lieberman, Robert W. Ashbrook and Linda M. Ashbrook, Frank H. Marsh, Jr. and Jeanne C. Marsh, Donald B. Goodman and Jane R. Goodman v. The Board of Commissioners of Salisbury Township, No. 78-C-2017.
J. Jackson Eaton, III, with him Richard W. Shaffer, Butz, Hudders & Tallman, for appellants.
James G. Kellar, Kellar & Kantra, for appellee.
Judges Blatt, Craig and Williams, sitting as a panel of three. Opinion by Judge Blatt.
The appellants here are appealing from an order of the Court of Common Pleas of Lehigh County which dismissed their challenge to an amendment of the Salisbury Township Ordinance No. 146 (Zoning Ordinance) by the Township Board of Commissioners (Board).
In November 1977, Edward Weiner (landowner) commenced a curative amendment proceeding under Section 609.1 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10609.1. His challenge was directed to the constitutionality of Section 407 of the Zoning Ordinance, which established a C-1 Zone (Planned Office-Laboratory) and limited the height of buildings therein to
three stories or 36 feet. His curative amendment was based on his proposal to develop his land within the C-1 Zone by constructing a life-care facility and hospice at a proposed height of eight stories or 96 feet. It is undisputed that, in considering the curative amendment, the Board complied with all of the relevant procedures under Section 609.1 (including those as to notice and hearing). The Board, however, never reached a decision on the constitutionality of the challenged section; rather, at a public meeting in May 1978 the Board simply enacted Ordinance No. 208, which amended the Zoning Ordinance to allow nursing-care facilities of eight stories or 96 feet except within 125 feet of a residential zone. The appellants, neighboring landowners in a residential district, thereafter appealed to the common pleas court, arguing that the enactment process was defective. The court rejected this attack, and this appeal followed.
The dispositive issue before us now is whether or not a zoning ordinance enacted pursuant to the proceedings for a curative amendment is invalid where no determination is made that the existing ordinance is unconstitutional. The appellants argue that Section 609.1 contemplates only a narrow quasi-judicial proceeding whose purpose is to determine the validity of the originally challenged ordinance and that it is only after that ordinance is found invalid that a legislative enactment may be adopted to cure the invalidity.
Section 609.1 of the MPC provides in pertinent part as follows:
A landowner who desires to challenge on substantive grounds the validity of an ordinance or map or any provision thereof, which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the ...