Appeal from the Order of the Court of Common Pleas of Adams County in the case of J. Kermit Meals v. Board of Supervisors of Franklin Township, Adams County, Pennsylvania, No. 79-S-335.
John Wills Beach, for appellant.
No appearance for appellee.
Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 57 Pa. Commw. Page 130]
This case comes before the Court on appeal by the Board of Supervisors of Franklin Township from a decision of the Adams County Court of Common Pleas, invalidating Section 3.03 of the Township Building Permit Ordinance of 1974,*fn1 which requires a thirty-five foot setback from highway right-of-way lines. The court simultaneously ordered the township to grant the requested building permit to the landowner, J. Kermit Meals.
In May, 1979, Meals applied to the Building Enforcement Officer for a permit to build a garage within ten feet of the thoroughfare right-of-way, propounding the extreme grade of his property as the reason for the variance request. The enforcement officer denied the permit application, advising Meals
[ 57 Pa. Commw. Page 131]
that he had no discretion to issue a permit for a plan which does not conform to all the requirements of the ordinance. In the same letter Meals was further advised that he had "the right to a hearing on this question under the Local Agency Law,"*fn2 which he did subsequently request. After the hearing, the Township Board of Supervisors affirmed the decision of the enforcement officer.
Meals then filed a timely notice of appeal with the Adams County Court of Common Pleas pursuant to 2 Pa. C.S. 752, in which, for the first time, he challenged the constitutionality of the pertinent section of the ordinance. The court heard argument on behalf of both parties, and, without taking further testimony, declared the ordinance invalid, sustaining the appeal.
Thereafter, the township appealed to this Court, raising two questions. Substantively, the township broadly assigned as error the determination of the lower court that the ordinance in question is invalid. Procedurally, the township took issue with the propriety of any ruling on the constitutionality of the ordinance, since that question was first raised in the appeal from the Board of Supervisors to the common pleas court, rather than before the Board. Both issues are ultimately rooted in the same underlying dilemma; nowhere in the procedural development of this case has anyone taken a definitive stand on what body of law this case involves.
The documents in this case are replete with zoning terminology and concepts, although the enactment in question is, by title, a portion of a building permit ordinance. The procedure which Meals used to challenge the denial of the permit presumes that the ordinance is a building ordinance, as does the initial advice of the township ...