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EDWARD WEINER v. BOARD SUPERVISORS LOWER MACUNGIE TOWNSHIP (09/16/88)

decided: September 16, 1988.

EDWARD WEINER, APPELLANT
v.
BOARD OF SUPERVISORS OF LOWER MACUNGIE TOWNSHIP, LEHIGH COUNTY, PENNSYLVANIA ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Edward Weiner v. Board of Supervisors of Lower Macungie Township, Lehigh County, Pennsylvania, Winding Brook Homeowners' Association, Adalgery Beck, Brookhaven Association, Inc., No. 86-C-1269.

COUNSEL

Edmund G. Hauff, Hauff & Turczyn, for appellant.

Peter S. Steinberger, with him, Blake C. Marles, Weaver, Mosebach, Piosa, Hixson, Wallitsch & Marles, for appellees.

Judge MacPhail, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision in this case.

Author: Macphail

[ 119 Pa. Commw. Page 486]

Dr. Edward Weiner (Appellant) appeals an order of the Lehigh County Court of Common Pleas which affirmed a decision of the Board of Supervisors of Lower Macungie Township (Supervisors) rejecting Appellant's challenge and curative amendments to the Zoning Ordinance of Lower Macungie Township. We affirm.

Appellant owns a 16.4412-acre tract of land located at the intersection of Brookside Road and Lower Macungie Road in Lower Macungie Township, Lehigh County. The tract is zoned LE-3, Living Environment-Suburban

[ 119 Pa. Commw. Page 487]

District, pursuant to the Zoning Ordinance. Uses permitted as of right in this district under Section 602 of the Zoning Ordinance, include agricultural uses, single family detached dwellings, and planned residential developments.

On October 29, 1985, Appellant submitted a petition to the Supervisors by which he challenged the Zoning Ordinance and proposed two curative amendments to permit the construction of a two-story, 102,490 square foot commercial building containing retail shops and office space on his property. The curative amendments proposed by appellant would 1) rezone his property to CC, Commerce Center District, and 2) provide for certain uses as of right in the CC District.

Hearings on Appellant's challenge coupled with curative amendments were held before the Supervisors on January 8, 1986, January 22, 1986, March 12, 1986, and April 16, 1986. The Supervisors, without making findings of fact or conclusions of law, denied Appellant's curative amendment to permit certain uses as of right in the CC District. Appellant appealed the Supervisors' decision to the common pleas court. The trial court, without taking additional testimony, made its own findings of fact and conclusions of law and affirmed the Supervisors' decision. Appellant's appeal of this order is now before us for disposition.

Appellant's initial argument on appeal is that the trial court erred in upholding the validity of the Zoning Ordinance because, as Appellant claims, it is de facto exclusionary with regard to commercial uses. We note that a zoning ordinance is normally presumed valid and the burden of proving otherwise is on the challenging party. ...


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