Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Appeal of H. Albert Beekhuis and I. Thurston Knight, No. 78-03941.
Harry F. Dunn, Jr., Class, Saulnier, Dunn, Abel and Miller, for appellants.
Robert B. Surrick, Levy & Surrick, for appellees.
Judges MacPhail, Williams, Jr. and Palladino, sitting as a panel of three. President Judge Crumlish and Judges Mencer, Rogers, Blatt, Craig, MacPhail and Palladino. Judges Wilkinson, Jr., and Williams, Jr. did not participate. Opinion by Judge Craig. Judge MacPhail concurs in the result only.
[ 59 Pa. Commw. Page 309]
In this zoning appeal, appellant applicants ask us to reverse an order of the Delaware County Court of Common Pleas, which dismissed their appeal and sustained a decision by the Zoning Hearing Board of Middletown Township (board) denying them two building permits for dwellings on half-acre lots.
The applicants own two separate land parcels in Middletown Township, totaling 45 acres, presently zoned R-1 residential, which requires a minimum of one acre for each single-family dwelling. In early 1976, applicants asked the township board of supervisors to rezone their property to R-2 residential, requiring one-half acre per family. Upon the supervisors' refusal, applicants applied for building permits to erect single-family homes on one-half acre lots, and when that application was refused, filed a validity appeal to the zoning hearing board under Section 1004 of the Pennsylvania Municipalities Planning Code
[ 59 Pa. Commw. Page 310]
(MPC),*fn1 not a curative amendment proceeding with the governing body under the same section.
The notice of appeal to the board was executed and filed by the attorney for the applicants, who verified it. The appeal attacked the validity of the R-1 one-acre minimum in two respects: (1) as applied to applicants' property, the requirement was discriminatory, confiscatory, and not reasonably related to the police power because the property was served by public sewer and water, and (2) in general, the R-1 district requirement was invalid as exclusionary.
Thus, applicants challenged the ordinance by seeking a "validity variance," (an attack upon the validity of the regulation as applied to particular property, as described in Township of Neville v. Exxon Corp., 14 Pa. Commonwealth Ct. 225, 230, 322 A.2d 144, 147 (1974)), and also by an attack on the validity of the ordinance generally.*fn2
In setting the initial hearing, the zoning hearing board issued notices by certified mail to the attorney for applicants as well as to the applicants themselves.
That initial hearing date was 61 days after applicants filed their appeal to the board. At the hearing, the attorney for applicants appeared and claimed that the delay gave rise to a deemed approval of the application;*fn3
[ 59 Pa. Commw. Page 311]
applicants presented no further evidence in support of the appeal at that time. The board continued the hearing until February 9, when the board voted to dismiss the appeal.
The board mailed a copy of its decision to the address of each of the applicants on February 15, even though their attorney had informed the board in the first hearing that both applicants would be on extended vacations. The board sent nothing to applicants' attorney at that time, despite the fact that he executed the appeal, was counsel of record and had previously received notice of the hearing date from the board by certified mail. On March 21, 40 days after the board's decision, applicants' attorney learned of the decision by chance from the board's ...