Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Slate Belt Vehicle Recycling Center, Inc. v. Washington Township, Paul B. Wagner, Carl Tolino and Paul Miller, No. 1979-C-5515.
William H. Agnew, for appellants.
John Molnar, Cassebaum, McFall & Molnar, P.C., for appellee.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Rogers. Judge Wilkinson did not participate in the decision in this case.
[ 58 Pa. Commw. Page 621]
By declaratory judgment proceedings*fn1 the Slate belt Vehicle Recycling Center, Inc. (Recycling Center)
[ 58 Pa. Commw. Page 622]
sought the resolution of legal questions raised by the denial of its applications for a junkyard license and a building permit by the Board of Supervisors of Washington Township (township). The township here seeks review of the decision and decree of the Court of Common Pleas of Northampton County declaring that the Recycling Center's applications were improperly denied.
The pertinent facts are not disputed. The Recycling Center is the equitable owner of an approximately eighty acre tract of land located in Washington Township on which it desires to erect improvements and to operate a business involving the acquisition of used motor vehicle parts and accessories -- primarily through the dismantling of used motor vehicles -- and the rehabilitation and resale of the parts and accessories. To this end the Recycling Center applied to the township for a junkyard license required by local ordinance and for a building permit necessary to construct an office and warehouse facility.
On the advice of its solicitor and following a public hearing attended by counsel for the Recycling Center, the township denied the applications. Two reasons were given: (1) that although the township had no zoning ordinance at the time the applications were filed, the activities shown to be intended by the Recycling Center's junkyard and building applications were not permitted under the new zoning ordinance which had been recommended by the planning commission and was being considered by the supervisors preliminary to the scheduling of public hearings and eventual enactment and (2) that no plat had been submitted or application made for subdivision approval as was required by the township's subdivision ordinance before any improvement could be undertaken on the land.
[ 58 Pa. Commw. Page 623]
Specifically, the Court of Common Pleas entered the following decree:
1. The Washington Township's Subdivision and Land Development Ordinance is not applicable to the applications of Plaintiff for junkyard licenses and building permits; and
2. Plaintiff's applications are not precluded by the pending ordinance rule.
The township first argues that declaratory relief was not properly available to the Recycling Center because the Pennsylvania Municipalities Planning Code (MPC)*fn2 provides the exclusive means for challenging the denial of the Recycling Center's applications. Goldstein v. Upper Merion Township, 44 Pa. Commonwealth Ct. 201, 403 A.2d 211 (1979) is cited as authority for this contention as well as Section 1001 of the MPC, the latter of which provides:
The proceeding set forth in this article shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of any municipality, its agencies or officers adopted or issued pursuant to this act.
We agree with the Court of Common Pleas that this argument must fail. The usual path to relief under the MPC -- appeal to the local zoning hearing board -- was not available to the Recycling Center because the township's zoning ordinance was not enacted until after the petition for declaratory relief was filed. This distinguishes this case from Goldstein v. Upper Merion Township, supra. ...