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VILLA v. ZONING HEARING BOARD (03/03/81)

decided: March 3, 1981.

THE VILLA, INC., APPELLANT
v.
THE ZONING HEARING BOARD, OLD FORGE BOROUGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of The Villa, Inc. v. The Zoning Hearing Board of Old Forge Borough, No. 118 March Term, 1978.

COUNSEL

Andrew Hailstone, Henkelman, McMenamin, Kreder & O'Connell, for appellant.

William F. Bradican, for appellee.

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

Author: Blatt

[ 57 Pa. Commw. Page 223]

The Villa, Inc. (appellant) appeals from the decision of the Court of Common Pleas of Lackawanna County which affirmed the determination of the Zoning Hearing Board of the Borough of Old Forge (Board) in its denial of the appellant's challenge to the validity of Borough Ordinance No. 6 of April 29, 1976.

On May 17, 1971, Louis Ciuccio, who with three other individuals and their wives*fn1 (prior owners) were the owners of a ninety-acre tract of land of which sixty-seven acres were located in Old Forge Borough, filed an application for a building permit and certificate of compliance with the zoning officer of Old Forge, for the use of the sixty-seven acres located in Old Forge, and zoned S-1, as a trailer court. Except for obtaining site approval for on-lot sewage disposal, the prior owners took no further steps to comply with either the zoning ordinance or applicable state regulations nor did they seek to compel consideration of their application by legal process.

In 1972, the Borough passed a comprehensive subdivision ordinance which, inter alia, permitted mobile home parks as a use in S-1 and R-2 zones, but required submission of detailed proposals of such projects to the Borough Planning Commission. On April 23, 1974, in compliance with the ordinance,*fn2 the prior owners

[ 57 Pa. Commw. Page 224]

    submitted an application for approval of a preliminary plan to utilize the sixty-seven acres for a mobile home park. By letter of June 19, 1974, the Planning Commission denied approval of the preliminary plan and no further action was taken by the prior owners.

On April 29, 1976, in response to a petition from area residents and landowners, the Borough enacted two amendments to the Borough Zoning Ordinance: Ordinance No. 5 which eliminated mobile home parks as a use in an R-2 zone, and Ordinance No. 6 which rezoned three hundred twenty-five acres, including the prior owners' sixty-seven acre tract, from S-1 (special purpose open space district) to R-1 (low-density residential zone). Mobile home courts were a permitted use in an S-1, but not in an R-1, zone. The prior owners did not challenge the validity of these amending ordinances.

Four months later, on August 25, 1976, the prior owners conveyed the sixty-seven acres, now zoned R-1, by quit claim deed to the appellant corporation of which the prior owners were the stockholders, and on May 12, 1977, the appellant corporation asserted a constitutional challenge to the validity of Ordinance No. 6. The Board made extensive findings of fact and concluded that Ordinance No. 6 was a non-confiscatory pro tanto amendment of the Borough Comprehensive Plan, and that, inasmuch as no development applications of the prior owners were pending at the time of its enactment, the applicant corporation took title to the sixty-seven acre tract subject to the 1976 amendment.

Where, as here, the court below affirmed the Board without taking additional testimony, our scope of review is limited to a ...


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