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APPEAL FROM DECISION BOROUGH COUNCIL BOROUGH EPHRATA GRANTING REQUEST DIAKONIA HOUSING (06/13/88)

decided: June 13, 1988.

IN RE: APPEAL FROM THE DECISION OF THE BOROUGH COUNCIL OF THE BOROUGH OF EPHRATA GRANTING THE REQUEST OF DIAKONIA HOUSING, INC. FOR A CURATIVE AMENDMENT. DANIEL S. SWEIGART ET AL., APPELLANTS


Appeal from the Order of the Court of Common Pleas of Lancaster County in the case of In Re: Appeal from the decision of the Borough Council of the Borough of Ephrata granting the request of Diakonia Housing, Inc. for a curative amendment, No. 1980-1986.

COUNSEL

Frank J. Vargish, III, Blakinger, Byler, Thomas & Chillas, P.C., for appellant.

Gary G. Krafft, Russell, Krafft, Gruber & Huber, for appellee.

President Judge Crumlish, Jr., and Judges McGinley and Smith, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 117 Pa. Commw. Page 86]

Appellants are homeowners of the Borough of Ephrata (Homeowners) who appeal from an Order of the Court of Common Pleas of Lancaster County which affirmed a decision by the Ephrata Borough Council (Council)*fn1 granting a curative amendment to the zoning ordinance of the Borough of Ephrata pursuant to a Petition for Curative Amendment filed by Appellee Diakonia Housing, Inc. (Diakonia).

Questions presented for review by this Court are whether the zoning ordinance amendment adopted by Council is invalid for lack of proper notice under the Pennsylvania Municipalities Planning Code (Code);*fn2 whether the Borough solicitor's functions were improperly commingled; whether the Borough solicitor's participation in the zoning hearing represented a conflict of interest and was contrary to Section 908 of the Code; whether the curative amendment was deemed denied due to Council's inaction; and whether Council was biased in its decision-making and erred in its determination that the zoning ordinance is exclusionary.*fn3 We affirm the trial court decision.

Diakonia, a non-profit Pennsylvania corporation, is the equitable owner of a 35,336 square foot macadamed

[ 117 Pa. Commw. Page 87]

    parking lot located in the R-3 Residential Zoning District of the Borough of Ephrata. In February, 1986, Diakonia filed a Petition for Curative Amendment*fn4 with Council which challenged the Borough's zoning ordinance on the ground that high density housing for the elderly is not a permitted use*fn5 in any zoning district within the Borough. Diakonia submitted a proposal to remedy this exclusion by allowing high density housing as a permitted use in Ephrata's R-3 District.

Council held a hearing on Diakonia's Petition for Curative Amendment on March 31, 1986. Notice thereof was published. The Borough solicitor was appointed as "presiding officer" at the hearing which was conducted by council. Evidence with respect to lot area requirements was presented and reports of the County and Borough Planning Commissions were introduced as well as Diakonia's documentation and the evidence and testimony of those Homeowners opposed to the proposed curative amendment. The Borough solicitor on May 12, 1986 presented his report of the March 31st hearing to Council. Council then enacted an amendment to Ephrata's zoning ordinance permitting high density elderly housing in the R-3 District as a conditional use.*fn6 Diakonia thereafter filed a conditional use application which was ultimately denied by Council.

[ 117 Pa. Commw. Page 88]

The scope of review by this Court in a zoning case where the lower court has taken no additional testimony or evidence is limited to determining whether, in this case, Council abused its discretion, committed an error of law, or whether the findings are supported by substantial evidence. Robin Corp. v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975).*fn7

I

Homeowners initially contend that the zoning ordinance amendment adopted by Council is invalid under the Code for lack of proper notice. Section 609 of the Code*fn8 provides in pertinent part:

Before voting on the enactment of an amendment, the governing body shall hold a public hearing thereon, pursuant to public notice. In the case of an amendment other than that prepared by the planning agency, the governing body shall submit each such amendment to the planning agency at ...


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