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

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. ยง 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 ...


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