Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Appeal of American Medical Centers, Inc. and Charles H. Dager, t/a Springhouse Co., from the decision of the Zoning Hearing Board of Lower Gwynedd Township, No. 79-5979.
Cassin W. Craig, with him Harris F. Goldich, and, of counsel, Wisler, Pearlstine, Talone, Craig & Garrity, for appellants.
John P. Knox, with him Jeremiah J. Cardamone, and Richard T. Abell, Timoney, Knox, Hasson & Weand, for appellees.
Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Rogers.
[ 54 Pa. Commw. Page 574]
American Medical Centers, Inc. and Charles H. Dager, respectively the equitable and legal owners of a parcel of land in Lower Gwynedd Township, have petitioned for review of an order of the Court of Common Pleas of Montgomery County affirming the township Zoning Hearing Board's (Board) denial of their application for a variance.
[ 54 Pa. Commw. Page 575]
American Medical Centers desires to build a nursing home on a 5.5 acre parcel of land which it has conditionally agreed to purchase from Dager. The township zoning ordinance permits nursing homes only by special exception and only on parcels containing at least 20 acres. American Medical Centers and Dager sought to obtain a variance from the 20 acre lot size requirement. At the hearing before the Board, Dager testified that certain characteristics of the property, including a slope and the presence of a flood plain, and the proximity of the lot to commercial uses on adjacent properties made residential development, permitted by right under the zoning ordinance, impractical. The Board, noting that Dager was not without self-interest and that no supporting evidence of unnecessary hardship had been presented, denied the variance. It found that one or more residential units could be built on the site and that Dager had offered no evidence other than his opinion that such units would be unmarketable. The Board further found that the adjacent commercial uses, which were said to make residential development inappropriate, had been built by or on land purchased from Dager and that any resulting hardship was self-inflicted.
On appeal to the Common Pleas Court additional evidence was introduced. The court en banc visited the property and affirmed the action of the Board.
Appellants advance two arguments on this appeal. First, it is contended that the zoning ordinance lot size requirement of twenty acres for a nursing home use is unreasonably large and, therefore, confiscatory. This of course challenged the substantive valadity of the ordinance on constitutional grounds. Cf. Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970); National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965). This argument was not presented to the Board. The
[ 54 Pa. Commw. Page 576]
zoning application, in the form of a letter of the appellant's counsel, contains no assertion of any substantive infirmity in the ordinance concerning lot size requirements or otherwise. At the hearing before the Board the arguments and evidence presented related only to asserted unnecessary hardship resulting from the application of the zoning regulations to this 5.5 acre lot. As we first declared in Robin Corp. v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975), and have consistently held since, challenges on constitutional grounds to the substantive validity of provisions of the zoning ordinance as they affect all property must be pursued by the procedures set forth in Section 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of June 1, 1972, P.L. 333, as amended, 53 P.S. § 11004, not by a request for a variance. Hankin v. Zoning Hearing Board of West Norriton Township, 35 Pa. Commonwealth Ct. 164, 384 A.2d 1386 (1978); see also Cutler v. Newtown Township Zoning Hearing Board, 27 Pa. Commonwealth Ct. 430, 367 A.2d ...