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PEACH BOTTOM TOWNSHIP v. PEACH BOTTOM TOWNSHIP ZONING HEARING BOARD (05/27/87)

decided: May 27, 1987.

PEACH BOTTOM TOWNSHIP, APPELLANT
v.
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.

COUNSEL

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.

Author: 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Judge Emmanuel A. Cassimatis determined that the matter was moot because one landowner had withdrawn from the appeal and the other landowner no longer had an ownership interest in the tract of land which was the subject of his challenge before the zoning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 ...


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