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JOHN W. HOLSTEN AND HELEN T. HOLSTEN v. WEST GOSHEN TOWNSHIP AND BOARD SUPERVISORS WEST GOSHEN TOWNSHIP (01/23/81)

decided: January 23, 1981.

JOHN W. HOLSTEN AND HELEN T. HOLSTEN, HIS WIFE, APPELLANTS
v.
WEST GOSHEN TOWNSHIP AND THE BOARD OF SUPERVISORS OF WEST GOSHEN TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Chester County in the case of John W. Holsten and Helen T. Holsten, his wife v. West Goshen Township and the Board of Supervisors of West Goshen Township, No. 301-P, Misc. of 1977.

COUNSEL

William F. Holsten, II, with him John E. Good, for appellants.

Ronald C. Nagle, Buckley, Nagle & McGuire, for appellees.

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

Author: Mencer

[ 56 Pa. Commw. Page 283]

John W. Holsten and Helen T. Holsten (appellants) have appealed from an order of the Court of

[ 56 Pa. Commw. Page 284]

Common Pleas of Chester County which dismissed their petition for declaratory judgment for lack of jurisdiction. We reverse and remand to the lower court for further proceedings consistent with this opinion.

The facts of this case are not in dispute. In 1968, West Goshen Township accepted deeds of dedication for Sylvan Road and Eagle Road to be used as public streets and has since maintained these roads. On June 5, 1970, East Goshen Township approved a housing development plan for property owned by appellants' predecessor in title, which illustrated a proposed road to connect with Sylvan and Eagle Roads. West Goshen Township then passed Ordinance No. 1 on May 12, 1971, setting aside certain land for use by the public as parks, including Sylvan Road and Eagle Road. The appellants purchased the property in East Goshen Township on May 25, 1971 and began construction of the development shortly thereafter. On May 2, 1977, the appellants started construction of an artery to connect with Sylvan and Eagle Roads. Three days later, West Goshen Township erected barricades across these roads, thereby preventing access to the development by this route.

Appellants then brought a petition for declaratory judgment, averring that the barricades were improperly erected because (1) the deeds of dedication of Sylvan and Eagle Roads were never vacated by the procedure set forth in Section 1102 of The Second Class Township Code,*fn1 which requires, inter alia, written notice to "property owners affected thereby", and (2) Ordinance No. 1 therefore violates Section 1901 of The Second Class Township Code,*fn2 which

[ 56 Pa. Commw. Page 285]

    provides that land may be designated as a public park only if it has not been dedicated to other public use. The lower court dismissed the petition on the ground that more than 30 days had elapsed between the adoption of the ordinance and the commencement of this action.

We do not agree that the lower court lacked jurisdiction to hear appellants' petition. Case law has established that the 30-day appeal period applies only to attacks based upon procedural defects in the enactment of the ordinance and does not prevent subsequent attacks on its substantive validity. Hodge v. Zoning Hearing ...


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