decided: May 27, 1987.
PEACH BOTTOM TOWNSHIP, APPELLANT
PEACH BOTTOM TOWNSHIP ZONING HEARING BOARD, LOWELL WILLIAMS AND PHILIP NICHOLSON, APPELLEES
Appeal from the Order of the Court of Common Pleas of York County, in case of Peach Bottom Township v. Peach Bottom Township Zoning Hearing Board, Lowell Williams and Philip Nicholson, No. 82-S-2931.
Gilbert G. Malone, Malone & Neubaum, for appellant.
Edward B. Golla, for appellee.
Judges Craig and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.
[ 106 Pa. Commw. Page 341]
Peach Bottom Township appeals from an order of the Court of Common Pleas of York County dismissing the township's appeal of a decision of the Peach Bottom Township Zoning Hearing Board which had determined that certain provisions of the township's zoning ordinance were unconstitutional. We affirm.
On January 21, 1982, Lowell Williams and Philip Nicholson had filed a challenge to certain agricultural preservation provisions of the Peach Bottom Township zoning ordinance. The landowners were seeking to enlarge their residential lots through the purchase of small adjoining lots. The size of those lots fell short of conforming with the agricultural preservation provision requiring a fifty-acre lot area minimum for farms. Although the additions would be used solely for agricultural purposes, the proposed enlarged lots would still be substantially smaller than the required fifty-acre lot area minimum.
[ 106 Pa. Commw. Page 342]
On July 6, 1982, the zoning hearing board sustained the landowners' challenge and declared three sections of the zoning ordinance to be unconstitutional.
The township filed a timely appeal of that decision to the court of common pleas. On March 25, 1986, the township filed a motion to dismiss the landowners' challenges on the ground that the challengers had lost standing and that therefore their challenges were moot.
Judge Emmanuel A. Cassimatis determined that the matter was moot because one landowner had withdrawn from the appeal and the other landowner no longer had an ownership interest in the tract of land which was the subject of his challenge before the zoning hearing board. Accordingly, the trial judge dismissed the township's appeal.
The township then filed a petition for reconsideration. Although the trial judge clarified the reasons for dismissing the appeal, he did not change the order. The township then filed a petition to vacate the decision of the zoning hearing board and remand with directions to dismiss. The trial court denied that petition on June 12, 1986.
The issue is whether the trial court erred by dismissing the township's appeal of the board's decision instead of negating the board decision by an action such as directing the dismissal of the landowners' challenges before the board.*fn1
[ 106 Pa. Commw. Page 343]
The township poses the following question: Does a zoning hearing board decision, if intervening mootness thwarts judicial review, bind the board and the township with respect to other cases?
The board had determined that the township's provisions requiring a fifty-acre minimum farm size, sliding scale allocation of dwelling rights, and a limited transfer between farms were unconstitutional.*fn2 The township
[ 106 Pa. Commw. Page 344]
argues that this court's recent decision in Codorus Township v. Rodgers, 89 Pa. Commonwealth Ct. 79, 492 A.2d 73 (1985), which upheld a fifty-acre lot area minimum for agricultural preservation purposes, decided after the board's decision here, should control. However, we specifically stated in Codorus at 88, 492 A.2d at 77, that:
[W]e emphasize that a fifty-acre lot area minimum is not necessarily valid in every situation, whether required for agricultural preservation purposes or otherwise, but must be scrutinized, as here, under a substantive due process analysis in the context in which it is presented.
The township -- concerned about res judicata or collateral estoppel effects of the board's decision -- is requesting this court to instruct its zoning hearing board how to proceed if the same, or different, landowners were to challenge again the validity of its agricultural preservation provisions. Although the effect of the board's decision, which the trial court here refused to dismiss, might be persuasive, this court cannot and need not predict or control what the board might decide in a future case in light of its own precedent.
Because a validity challenge to a zoning ordinance must be scrutinized "in the context in which it is presented,"*fn3 this court cannot instruct a zoning hearing board how to decide future challenges to the agricultural preservation provisions in the zoning ordinance.
Moreover, the township astutely recognizes Allegheny County v. Maryland Casualty Co., 146 F.2d 633 (3rd Cir. 1944) for the proposition that, under Pennsylvania law, where a party to a judgment cannot obtain appellate review because the matter becomes moot, the
[ 106 Pa. Commw. Page 345]
judgment against him is not conclusive in a subsequent action on a different cause of action. The logic of that rule cannot be denied, and we approve it.
The role of appellate courts in zoning cases is to review controversies involving zoning ordinances. Accordingly, because no controversy was presented to the trial court, nor does any real controversy remain for consideration here, we must affirm Judge Cassimatis' sound decision to dismiss the case before him.
Now, May 27, 1987, the order of the Court of Common Pleas of York County, dated June 2, 1986, at No. 82-S-2931, is affirmed.