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APPEAL MARPLE GARDENS (08/07/86)

decided: August 7, 1986.

IN RE: APPEAL OF MARPLE GARDENS, INC. FROM THE DENIAL OF ITS CHALLENGE TO THE VALIDITY OF THE ZONING ORDINANCE AND MAP OF MARPLE TOWNSHIP, DELAWARE COUNTY, PENNSYLVANIA, AND OF ITS CURATIVE AMENDMENT APPLICATION BY THE BOARD OF COMMISSIONS OF MARPLE TOWNSHIP. MARPLE TOWNSHIP, APPELLANT


Appeal from the Order of the Court of Common Pleas of Delaware County, in case of In Re: Appeal of Marple Gardens, Inc. from the denial of its challenge to the validity of the Zoning Ordinance and Map of Marple Township, Delaware County, Pennsylvania, and of its Curative Amendment Application by the Board of Commissioners of Marple Township, No. 80-10044.

COUNSEL

Michael F. X. Gillin, for appellant.

Michael Sklaroff, with him, Thomas R. Eshelman and Vincent J. LaBrasca, of Counsel: Ballard, Spahr, Andrews & Ingersoll, and Fronefield & DeFuria, for appellee.

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

Author: Doyle

[ 99 Pa. Commw. Page 487]

Before us is the appeal of Marple Township (Township) in a matter involving a challenge to the validity of the Township's zoning ordinance on the basis that it impermissibly excluded mobile home parks. The Township appeals the order of the Court of Common Pleas of Delaware County which directed that the Township issue a zoning permit to Marple Gardens, Inc. to allow Marple Gardens to develop a mobile home park on its property.

Marple Gardens, Inc. (Marple Gardens) is the owner of 17.66 acres of undeveloped real estate northwest of Lawrence Road in Marple Township. On May 5, 1983, Marple Gardens filed with the Township a challenge to the validity of the Township's Zoning Ordinance pursuant to Section 609.1 of the Pennsylvania Municipalities Planning Code (Code),*fn1 53 P.S. § 10609.1. In its challenge, Marple Gardens alleged that the existing zoning ordinance made no provision for mobile home parks,

[ 99 Pa. Commw. Page 488]

    and proposed a curative amendment to the ordinance which would have established a mobile home park district on the land that Marple Gardens owned. In response to the challenge, the Township initially scheduled hearings to be held on June 24, 1980 before the Planning Commission, and on June 30, 1980 before the Board of Commissioners. On June 9, 1980, however, prior to these scheduled hearings, the Board of Commissioners passed a resolution pursuant to Section 609.2 of the Code,*fn2 53 P.S. § 10609.2, declaring its zoning ordinance to be substantially invalid. On June 23, 1980, the Township passed additional resolutions reaffirming its declaration that the ordinance was invalid, and proposing that a curative amendment be considered and adopted. On that same date the Township cancelled both scheduled hearings on Marple Gardens' challenge. Marple Gardens filed two appeals to the Court of Common Pleas, dated July 22, 1980, and August 28, 1980, both based upon the Township's failure to hold timely hearings on Marple Gardens' challenge.

On December 3, and 8, 1980, the Township adopted its own curative amendment to the zoning ordinance, establishing a mobile home park district in an area in which Marple Gardens' real estate was not located. Thereafter the Township attempted to reschedule a hearing on Marple Gardens' challenge for January 11, 1981. Marple Gardens declined to participate because of its outstanding appeals with the common pleas court.

The trial court consolidated Marple Gardens' appeals and, after denying the Township's Motion to Quash for lack of jurisdiction, assigned the matter to a referee to receive evidence and make recommendations to the Court. The referee conducted eleven hearings in which extensive testimony was presented addressing

[ 99 Pa. Commw. Page 489]

    both the site-suitability of Marple Gardens' land and the validity of the Township's zoning ordinance. After examining the evidence, the Court determined that, as to the issue of the ordinance's validity, the Township's subsequent amendment to its ordinance was not relevant and had no effect on the challenge by Marple Gardens. Next, the court concluded that the invalidity of the Township's zoning ordinance had been established as a matter of law by the Township's own declaration of its invalidity on June 23, 1980. Finally, the court made findings of fact in which it determined that Marple Gardens' land was suitable for a mobile home park development. For these reasons, the trial court directed the Township to issue a zoning permit to Marple Gardens.

On appeal to this Court, our scope of review is limited to determining whether the finder of fact has abused its discretion to determining whether the finder of fact has abused its discretion or committed an error of law. Kelly Appeal, 87 Pa. Commonwealth Ct. 534, 487 A.2d 1043 (1985).

Before this Court, the Township first argues that the trial court had no jurisdiction to hear the case because the Township never acted upon Marple Gardens' challenge. A landowner who has submitted a challenge to the validity of a zoning ordinance is entitled to an appeal to "a court of competent jurisdiction" from the "denial" of its challenge.*fn3 Section 1004(4) of the Code*fn4 provides that for purposes of the landowner's appeal:

[ 99 Pa. Commw. Page 490]

The landowner's request for a curative amendment is denied when (i) the governing body notifies the landowner that it will not adopt the amendment, or (ii) the governing body adopts another amendment which is unacceptable to the landowner, or (iii) the governing body fails to act on the landowner's request, in which event the denial is deemed to have occurred on the thirtieth day after the close of the last hearing on the request unless the time is extended by mutual consent between the landowner and the municipality.

In Galbreath v. Board of Supervisors of Northampton Township, 55 Pa. Commonwealth Ct. 165, 423 A.2d 45 (1980) we considered whether a "deemed denial" had occurred under similar factual circumstances. In Galbreath, the Township held one hearing on the landowner's Section 609.1 challenge, but then cancelled further hearings and instead took action under Section 609.2 to consider its own curative amendment. We held that the Township's action under Section 609.2 did not place a moratorium on the landowner's prior challenge, and that, under Section 1104(4)(iii), a "deemed denial" of the landowner's challenge had occurred thirty days after the last hearing on the challenge, thus entitling the landowner to appeal.

In the present case, the Township attempts to distinguish Galbreath on the fact that here, the Township has held no hearings on the challenge. The Township contends that under Section 1004(4)(iii) a denial occurs only after a hearing has been held. It suggests that the only remedy for the Township's failure to hold any hearing within the sixty day time period specified under Section 609.1 is an action in mandamus to compel ...


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