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HENRY SHOENER ET AL. v. SCHUYLKILL COUNTY BOARD COMMISSIONERS AND TARCON LAND COMPANY (11/01/82)

decided: November 1, 1982.

HENRY SHOENER ET AL., APPELLANTS
v.
THE SCHUYLKILL COUNTY BOARD OF COMMISSIONERS AND TARCON LAND COMPANY, INC., APPELLEES



Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of Henry Shoener, Francis J. Czuczman, John J. Stemmler, Helen Micolek, John J. Nortavage, John A. Nortavage, Adolph S. Facini, Albert Facini, in their own right and as officers and trustees of the "Mary-D Community Association," an unincorporated association v. The Schuylkill County Board of Commissioners and Tarcon Land Company, Inc., No. S-888, 1980.

COUNSEL

Charles M. Miller, Rubright, Domalakes, Troy & Miller, for appellants.

Pasco L. Schiavo, for appellees.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 69 Pa. Commw. Page 501]

The appellants are the Mary-D Community Association described in the record as an unincorporated

[ 69 Pa. Commw. Page 502]

    association of homeowners, and some of its members whose properties are located near a 37 acre tract of land in Schuylkill County owned by Tarcon Land Company, Inc., (Tarcon), an appellee. The issue presented by the appellants is that of the propriety of the procedures undertaken by the Board of Commissioners of Schuylkill County in amending the county zoning ordinance by removing Tarcon's land from the "M-Mining" district and placing it in the "R-2 Single Family Residential" district so that Tarcon might build dwelling homes. The Schuylkill County Court of Common Pleas held that the county's procedures were without defect.

The appellants raised in their notice of appeal filed in the common pleas court pursuant to Sections 1003 and 1008 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยงยง 11003, 11008, the following procedural defects in the process of the enactment of the amendment:

     a. Notice of [Tarcon's] request for amendment was not received by your Petitioners in accordance with Section 901(B) of the Schuylkill County Zoning Ordinance. . . .

     b. No recommendations of the Planning Commission were submitted to the Respondent, the Schuylkill County Board of Commissioners; and

     c. The Application for amendment did not conform to Section 902 of the said Schuylkill County Zoning Ordinance in that the Respondent, Tarcon Land Company, Inc. did not submit photographs of the area to be rezoned and the abutting areas. . . .

As appears, the appellants alleged no deviation from the procedures for adopting amendments required by Sections 609 and 107(18) of the MPC. In Pumo v. Norristown ...


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