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JAMES MARINARI ET AL. v. ZONING HEARING BOARD NEW HANOVER TOWNSHIP AND NEW HANOVER TOWNSHIP. NEW HANOVER TOWNSHIP (08/02/85)

decided: August 2, 1985.

JAMES MARINARI ET AL.
v.
THE ZONING HEARING BOARD OF NEW HANOVER TOWNSHIP AND NEW HANOVER TOWNSHIP. NEW HANOVER TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of James Marinari, John Marinari and Albert Marinari (Marinari Brothers) v. The Zoning Hearing Board of New Hanover Township, No. 83-12157.

COUNSEL

Alan Lee Levengood, with him, Ronald H. Reynier, for appellant.

Marc D. Jonas, with him, Matthew S. Santangelo, for appellees.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 90 Pa. Commw. Page 603]

New Hanover Township (Township) appeals from the order of the Montgomery County Court of Common Pleas, which reversed the decision of the New Hanover Township Zoning Hearing Board (Board), and directed that the Board approve Landowners'*fn1 proposed development of a sanitary landfill.

Landowners are the owners of a 107 acre tract of land in New Hanover Township. On February 17, 1983, Landowners filed an application with the Board challenging the constitutionality of the Township's Zoning Ordinance on the basis of its exclusion of sanitary landfills as a permitted use. After conducting numerous hearings, the Board found that the Township's zoning ordinance was exclusionary as to sanitary landfills, but that a valid pending ordinance was in existence at the time of application. The Board concluded that since the pending ordinance permitted sanitary landfills when operated by the Township or

[ 90 Pa. Commw. Page 604]

    municipal authority, Landowners' contemplated use of their property as a sanitary landfill would not be permitted.

On appeal, the court of common pleas took no additional evidence and reversed, concluding that there was no valid pending ordinance at the time of application, since the Township had failed to give the required public notice of the proposed ordinance, and had failed to pursue the proposed ordinance in good faith and with reasonable dispatch.

Where, as here, the trial court has taken no additional evidence, our scope of review is limited to determining whether the zoning board abused its discretion, or committed an error of law. Appeal of M.G.H. Enterprises, 85 Pa. Commonwealth Ct. 68, 480 A.2d 394 (1984).

Under the "pending zoning ordinance doctrine," a building permit may be refused if at the time of application there is pending an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought. Boron Oil Co. v. Kimple, 445 Pa. 327, 329, 284 A.2d 744, 746 (1971). An ordinance will be considered pending when a governing body has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on such rezoning. Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 226, 328 A.2d 464, 467; Boron Oil Co., 445 Pa. at 331, 284 A.2d at 747. A permit may be refused under the pending zoning ordinance only in situations where the municipality acts initially in good faith to achieve permissible ends ...


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