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WALTER W. PRICE v. ZONING HEARING BOARD HANOVER TOWNSHIP (02/09/83)

decided: February 9, 1983.

WALTER W. PRICE, WALTER M. PRICE AND GAIL PRICE GEIGER, APPELLANTS
v.
THE ZONING HEARING BOARD OF HANOVER TOWNSHIP, LEHIGH COUNTY, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Lehigh County in cases of Walter W. Price, Walter M. Price and Gail Price Geiger v. The Zoning Hearing Board of Hanover Township, Lehigh County, No. 81-C-2573; and Walter W. Price, Walter M. Price and Gail Price Geiger v. The Zoning Hearing Board of Hanover Township, Lehigh County, No. 81-C-2574.

COUNSEL

B. Ryland Wiggs, for appellants.

J. Jackson Eaton, III, Butz, Hudders & Tallman, for appellee.

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

Author: Rogers

[ 72 Pa. Commw. Page 6]

The appellants, Walter M. Price, Walter W. Price and Gail Price Geiger, own about five acres of land located in a residential zoning district of Hanover Township, Lehigh County, Pennsylvania. Desiring to use their land as a place to buy and sell scrap metal and scrapped or abandoned motor vehicles, machinery and equipment they filed with the township zoning hearing board a validity challenge to the zoning ordinance pursuant to Section 1004(2)(a) of the Pennsylvania

[ 72 Pa. Commw. Page 7]

Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(2)(a). The challenge was based on the claimed total prohibition of the use of land in the township for buying and selling scrap and metal and scrapped or abandoned motor vehicles, machinery and equipment.

The challenge was filed March 13, 1981. The board scheduled a hearing by giving public notice that the subject of the hearing was the appellants' challenge to the validity of the zoning ordinance with regard to restrictions on the locations of junkyards in the township. The appellants appeared April 22, 1981 and objected to the hearing of evidence because the notice had described their intended use as a junkyard not a scrap metal reclamation enterprise. The hearing was continued until the next board meeting May 27, 1981. The record reveals that the chairman of the board stated: "However, we make a unanimous decision that this hearing be continued, that the advertisement be restated as described by Attorney Wiggs [the appellants' counsel] and have a continuation to the next zoning meeting for this case." The appellants' counsel responded "I am sure Mr. Coleman [the secretary] can send us notice. Thank you."

Neither the appellants nor their counsel appeared at the May 27, 1981 hearing and the board dismissed the challenge for want of prosecution and duly notified the appellants in writing.

On July 13, 1981, the appellants filed an action in mandamus in the Lehigh Court of Common Pleas contending that because a hearing was not held by the board until May 27, 1981, more than sixty days from the date of the filing of their complaint, their challenge should be deemed approved pursuant to Section 908(9) of the MPC, 53 P.S. § 10908(9) and seeking an order on the township that its proposal for a scrap metal yard be approved. The township filed preliminary

[ 72 Pa. Commw. Page 8]

    objections to this action in the nature of a demurrer, which the trial court sustained and the appellants' appeal from that action ...


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