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WILLIAM AND DONNA MCCLIMANS v. BOARD SUPERVISORS SHENANGO TOWNSHIP (07/22/87)

decided: July 22, 1987.

WILLIAM AND DONNA MCCLIMANS, ET AL., APPELLANTS
v.
BOARD OF SUPERVISORS OF SHENANGO TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lawrence County, in case of William and Donna McClimans, James and Mabel Paige, Michael and Paul Slavin, Stanley and Bernice Babick, Albert and Florence Bober, Albert Zak, Edward Zak, Albert Presnar, Henry Presnar, Stanley D. Presnar, Jr., Edward Presnar, John P. Presnar, Medusa Cement Company and Amerikohl Land Company v. Board of Supervisors of Shenango Township, No. 118 of 1985, M.D.

COUNSEL

Victor R. Delle Donne, Baskin, Flaherty, Elliott & Mannino, P.C., for appellants.

Gabriel P. Cilli, LaMancusa & Cilli, P.C., for appellee.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge MacPhail. Concurring Opinion by Judge Craig.

Author: Macphail

[ 107 Pa. Commw. Page 544]

The Amerikohl Land Company and a group of landowners (Appellants) appeal an order of the Lawrence County Court of Common Pleas which affirmed a decision by the Shenango Township (Township) Board of Supervisors denying Appellants' request that it declare relevant portions of its zoning ordinance invalid and adopt Appellants' proposed curative amendment. We vacate and remand.

The landowners involved have leased to Amerikohl the right to remove, by a strip mining process, coal on their property. The property in question is zoned R-1 residential. Under the terms of the zoning ordinance, surface mining is not a permitted use in the R-1 zone. Appellants filed a request for a curative amendment to the Township's ordinance which would permit the mining. The Township Board of Supervisors (Board) refused to grant the curative amendment.

Appellants insist that the Township's ordinance is invalid and that, hence, they have a right to strip mine on the property. They appealed the Board's decision to the common pleas court. That court upheld the decision of the Board. Appellants now bring their appeal to us.

The question which we are now concerned with is whether the Board's action in determining that the ordinance is valid was improper. Where, as here, the common pleas court, in considering a township board of supervisors' determination on a petition for a curative amendment, takes no additional evidence, our scope of review is limited to a determination of whether the governing body committed an error of law or a manifest abuse of discretion. McKown v. Board of Supervisors of East Fallowfield Township, 104 Pa. Commonwealth Ct. 428,

[ 107 Pa. Commw. Page 545522]

A.2d 159 (1987). We may only conclude that the governing body abused its discretion if its findings are not supported by substantial evidence. See Valley View Civic Ass'n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 555, 462 A.2d at 640.

We must also keep in mind that a zoning ordinance carries with it a strong presumption of validity and that a party seeking to challenge that validity bears an extremely heavy burden to invalidate the ordinance. Appeal of Gulf Oil Corp., 101 Pa. Commonwealth Ct. 327, 516 A.2d 420 (1986).

Statement of Community Objectives

Appellants make a series of attacks on the validity of the Township's zoning ordinance. Their first argument is that the ordinance is invalid because it does not contain a "statement of community development objectives."

Section 606 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10606 provides as follows:

Each zoning ordinance enacted after the effective date of this act shall contain a statement of community development objectives. This statement may be supplied by reference to the community comprehensive plan or such portions of the community comprehensive plan as may exist and be applicable or to a statement of legislative findings of the governing body of the political subdivision, having a bearing on the community comprehensive plan, with respect to land use, density of population, and location and function of streets and other community facilities and utilities, together with any other factors

[ 107 Pa. Commw. Page 546]

    that the municipality believes relevant in describing the purposes and intent of such ordinance. With respect to zoning ordinances enacted prior to the effective date of this act, a statement of community development objectives shall be supplied by amendment to the zoning ordinance within three years from the effective date of this act.

In Springfield Township Appeal, 81 Pa. Commonwealth Ct. 513, 474 A.2d 706 (1984) this Court, in refusing to declare a zoning ordinance invalid, stated:

We believe that the invalidation of the Springfield Township Zoning Ordinance would be a drastic remedy under the present circumstances. The Township had in fact substantially complied with the Section 606 requirement when in 1971, it adopted a Land Use Plan containing a statement of community development objectives. For this Court to invalidate the ordinance merely because it does not contain a cross-reference to the Township's Land Use Plan would be to raise form over substance.

Id. at 526, 474 A.2d at 712.

It was quite appropriate for this Court to establish this caveat to Section 606 of the MPC in light of the fact that, as noted in footnote 7 of the Springfield Township case, the filing of a comprehensive plan is optional under the MPC. A municipality which has enacted a comprehensive plan has obviously done much more to state its community development objectives than is required by the MPC. To strike down a zoning ordinance, which is valid and sound in all other respects, merely because there is no cross-reference to the comprehensive plan would be ludicrous. If a comprehensive plan exists, it is likely that the primary ends of the MPC -- to provide for planned, rational, non-arbitrary zoning -- is indeed being

[ 107 Pa. Commw. Page 547]

    achieved by the municipality involved. Finding a zoning ordinance to be invalid under such circumstances would in fact thwart the MPC's goal of providing for rational, planned development.

In the case at bar, the zoning ordinance was enacted before the effective date of the MPC. The zoning ordinance was never amended, however, to include a statement of community objectives or a reference to a comprehensive plan. Appellants assert that this is fatal to the ordinance. We disagree because there is in existence a comprehensive plan for Shenango Township.

It is true, as the Appellants point out, that while the comprehensive plan was alluded to several times during the hearing, it was never formally introduced into evidence. Further, it was never made part of the record certified to us. However, we are of the opinion that we are required to take judicial notice of the comprehensive plan.

It is clear that the Common Pleas Court Judge did just that. In his opinion he stated: "In the present case, the township's multi-volume Comprehensive Plan, pursuant to which the zoning ordinance was adopted, serves the purpose of a statement of objectives. . . ." McClimans v. Board of Supervisors of Shenango Township, (No. 118 of 1985, M.D. in the Court of Common Pleas of Lawrence County, filed January 29, 1986), Slip Op. at 6. The Common Pleas Court was correct to take judicial notice of the comprehensive plan. In Board of Supervisors, Township of Bensalem v. DiEgidio, 40 Pa. Commonwealth Ct. 209, 396 A.2d 920 (1979), this Court ruled that in a proceeding to compel a township board of supervisors to approve applications for a land development and a subdivision, the trial court did not err in taking judicial notice of township regulations which were adopted by resolution and which related to applications for land development. That decision was

[ 107 Pa. Commw. Page 548]

    based on Section 1 of the Act of April 8, 1941, P.L. 16, as amended, formerly 28 P.S. § 301, repealed by the Act of April 28, 1978, P.L. 202. That section provided:

Every court of this State shall take judicial notice of the ordinances of cities, boroughs, incorporated towns and townships of the first class ...


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