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PHEASANT RUN CIVIC ORGANIZATION ET AL. v. BOARD COMMISSIONERS PENN TOWNSHIP AND LEYBOLD-HERAEUS (06/25/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 25, 1981.

PHEASANT RUN CIVIC ORGANIZATION ET AL.
v.
BOARD OF COMMISSIONERS OF PENN TOWNSHIP AND LEYBOLD-HERAEUS, INC., A CORPORATION. PHEASANT RUN CIVIC ORGANIZATION, GARY W. CAMPBELL, CARROLL E. GRISER AND THOMAS J. HARPER, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Pheasant Run Civic Organization, an unincorporated association, by Gary W. Campbell, Carroll E. Griser and Thomas J. Harper, Jr., Trustees Ad Litem, Gary W. Campbell, an individual, Carroll E. Griser, an individual, and Thomas J. Harper, Jr., an individual v. Penn Township Zoning Hearing Board and Leybold-Heraeus, Inc., a corporation, No. 9224 of 1979.

COUNSEL

Templeton Smith, Jr., with him Edward C. Schmidt, Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, for appellants.

Robert J. Milie, with him Leslie J. Mlakar, for appellee, Commissioners of Penn Township Zoning Hearing Board.

John D. Finnegan, for appellee, Leybold-Heraeus Vacuum Products, Inc.

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

Author: Craig

[ 60 Pa. Commw. Page 217]

Pheasant Run Civic Organization and several individuals (objectors) appeal an order of the Court of Common Pleas of Westmoreland County which affirmed a decision of the Zoning Hearing Board of Penn Township (board) which the objectors have opposed.

[ 60 Pa. Commw. Page 218]

In early 1979, appellee Leybold-Heraeus Vacuum Products, Inc. (landowner) filed a zoning amendment petition, requesting the rezoning of a 25.07 acre tract of land it owned from M-1 (Light Industrial) to M-2 (Heavy Industrial). The request did not specify any proposed use for the property, but only proposed use of the tract for "permitted uses under the M-2 zoning classification."

After several hearings, the Penn Township Board of Commissioners (commissioners) adopted the requested zoning ordinance amendment on March 12, 1979. The objectors filed an appeal to the board on April 10, alleging that the amendment was substantively*fn1 invalid; no attack upon the enactment procedure was raised. In a letter attached to the appeal, the objectors' counsel specified that the appeal was taken pursuant to Section 1005 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 11005,*fn2 and requested a hearing.

Section 1005, titled "Validity of ordinance; substantive questions; appeals by person aggrieved" states in part:

[ 60 Pa. Commw. Page 219]

Persons aggrieved by a use or development permitted on the land of another by an ordinance or map or any provision thereof who desire to challenge its validity on substantive grounds shall first submit their challenge to the zoning hearing board for a report thereon under Section 910. . . .

The board upheld the commissioners' adoption of the ordinance in its decision of August 1, 1979.

The objectors' appeal to common pleas court, also taken under Section 1005, followed. After careful consideration of all the objectors' challenges, the court based its decision to dismiss the appeal on its conclusion that the board had not committed an abuse of discretion or an error of law in affirming the commissioners' action.

The current appeal rests on the same grounds as those advanced below. However, because we conclude that the procedure followed by the objectors was jurisdictionally infirm, we must dismiss the appeal without reaching the merits.

When the board of commissioners, as a governing body, acted upon the rezoning application, it was acting in its legislative capacity. McCandless Township v. Beho Development Corp., 16 Pa. Commonwealth Ct. 448, 452, 332 A.2d 848, 851 (1975). Thus, because courts have no power to interfere with that strictly legislative process, Greensburg Planning Commission v. Cabin Hill, Inc., 19 Pa. Commonwealth Ct. 324, 339 A.2d 594 (1975), the commissioners' determination to grant or deny the application is not subject to direct judicial review. See Ryan, Pennsylvania Zoning Law and Practice § 9.6.1 (1979).

A necessary precondition to the substantive challenge of an ordinance is the existence of a specific use to which the property is sought to be developed; an objector may not bring a substantive validity challenge

[ 60 Pa. Commw. Page 220]

    against an ordinance amendment where the landowner has not applied for a specific use and the zoning officer has not issued a use or occupancy permit for the property. Northampton Residents Association v. Northampton Township Board of Supervisors, 14 Pa. Commonwealth Ct. 515, 322 A.2d 787 (1974); Gerstley v. Cheltenham Township Commissioners, 7 Pa. Commonwealth Ct. 409, 299 A.2d 657 (1973).

The terms of Section 1005 of the MPC support the conclusion stated; the "person" attempting the challenge must be "aggrieved by a use or development permitted on the land of another. . . ."

Where, as here, there is no application for a specific use and no use or occupancy permits are issued under the amendment before the date of the objectors' appeal, the appeal from the commissioners' action granting the rezoning application is ineffective.*fn3 Neither the board, the court below nor this court have jurisdiction because there is no case or controversy ripe for judicial intervention. Gerstley, supra.

Accordingly, the appeal is quashed.*fn4

Order

And Now, June 25, 1981, the appeal is quashed.

Disposition

Appeal quashed.


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