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JOHN N. PALM AND THOMAS MACK v. CENTER TOWNSHIP (06/12/80)

decided: June 12, 1980.

JOHN N. PALM AND THOMAS MACK, APPELLANTS
v.
CENTER TOWNSHIP, A TOWNSHIP OF THE SECOND CLASS, AND THE CENTER TOWNSHIP BOARD OF SUPERVISORS, AND GEORGE D. ZAMIAS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Butler County in case of John N. Palm and Thomas Mack, in their individual capacities and as representatives of an unincorporated association known as the "Save Center Township Committee" v. Center Township, a Township of the Second Class, and The Center Township Board of Supervisors, A.D. No. 79-457.

COUNSEL

Gwilym A. Price, III, with him Frank P. Krizner, McCandless & Krizner, for appellants.

Leo M. Stephanian, for appellees.

Thomas W. King, III, Dillon, McCandless, King & Kemper, for intervenor, George D. Zamias.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 52 Pa. Commw. Page 193]

This zoning appeal seeks review of a decision of the Court of Common Pleas of Butler County which upheld a zoning amendment, the enactment process of which had been attacked under Section 1003 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11003.

Our conclusion is to affirm the decision of the court below. Because the opinion of President Judge Kiester, of the Court of Common Pleas of Butler County, succinctly and soundly sets forth the facts and reasons for the decision, we adopt that opinion in substantial part as follows:

[ 52 Pa. Commw. Page 194]

"Before the Court is an appeal by John N. Palm et al. from the enactment of an ordinance changing the zoning classification of a tract of land in Center Township from R-2 (2 family residential) to C-1 (commercial). This is a procedural attack on the ordinance. Appellants maintain that the Board of Supervisors failed to comply with legal procedure in adopting the ordinance.

"The proposed ordinance amending the Zoning Code provided for the re-zoning of 126.176 acres, more or less, as per a survey revised August 4, 1977. At a meeting on April 4, 1979, when the ordinance was presented for adoption, the Supervisors reduced the area to be re-zoned from 126.176 to 90 acres, by referring to a line on a map that divided the 90 acres from the 36 acres that would not be re-zoned. A legal description was prepared and set forth in an advertisement of the enactment of the amended ordinance. There has been no controversy over the location of the 90 acres within the original 126 acre tract. It is argued by appellants that the description of the 90 acres had to be by metes and bounds at the time the Supervisors acted to adopt the Ordinance.

"This Court disagrees. If an issue existed over the location of the boundary line a different conclusion might be reached. The survey simply provided a revised legal description for the 90 acres that was re-zoned.

"The reduction in the size of the area to be re-zoned was not a 'significant' change in the proposed ordinance as originally advertised. The change did not affect other landowners. If it had been a substantial change affecting owners in a different way, the law requires re-advertisement and a further public hearing. If other land had been included in the amendment the law ...


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