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CAMBRIDGE LAND COMPANY AND HERBERT BROTHERS v. TOWNSHIP MARSHALL (06/09/89)

filed: June 9, 1989.

CAMBRIDGE LAND COMPANY AND HERBERT BROTHERS, APPELLANTS
v.
THE TOWNSHIP OF MARSHALL, APPELLEE



Appeal from Common Pleas Court, Allegheny County; Honorable S. Louis Farino, Judge.

COUNSEL

Gene E. Arnold, Esq., Thomas C. Herbertson, Esq., WILLMAN & ARNOLD, Pittsburgh, Pa., for appellants.

Arthur J. Leonard, Esq., ROBB, LEONARD & MULVIHILL, Pittsburgh, Pa., for appellee.

Before: Honorable James Crumlish, Jr., President Judge, Honorable David W. Craig, Judge, Honorable Joseph T. Doyle, Judge, Honorable Francis A. Barry, Judge, Honorable James Gardner Colins, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge. Judge McGinley concurs in the result only.

Author: Craig

[ 126 Pa. Commw. Page 439]

OPINION BY JUDGE DAVID W. CRAIG

This is an appeal by landowners Cambridge Land Company and Herbert Brothers from a decision of the Court of Common Pleas of Allegheny County, in which the court affirmed the Marshall Township Board of Supervisors' rejection of the landowners' curative amendment proceeding, which charged that the present zoning ordinance is invalid because it is exclusionary.

From the board's findings, we take the following facts. The landowners together own a 40-acre tract of land located at Route 910 and Wexford Run Road in Marshall Township. Cambridge Land Company owns 13 acres of the land, and Herbert Brothers own 27 acres of the land. They desire to construct garden apartments and neighborhood commercial structures on the land. However, the property is currently zoned as single-family residential property.

On November 28, 1986, the landowners filed separate challenges to the validity of the zoning ordinance. Herbert Brothers included a proposed curative amendment and a certification. Sections 609.1 and 1004(2) of the Pennsylvania

[ 126 Pa. Commw. Page 440]

Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10609.1, 11004(2)*fn1 Cambridge Land Company did not include either a curative amendment or the required certification.

On January 21, 1987, and May 4, 1987, the Marshall Township Board of Supervisors held hearings.

This court's scope of review here is limited to determining whether the board committed an error of law or an abuse of discretion in rejecting the landowners' challenges because the court of common pleas has not taken any additional evidence beyond that presented to the board. Sullivan v. Board of Supervisors of Lower Makefield Township, 22 Pa. Commonwealth Ct. 318, 348 A.2d 464 (1975).

The first issue is whether the Cambridge Land Company's challenge to the zoning ordinance is fatally flawed because it failed to include a curative amendment and the certification statement required by section 1004(2)(a) and (d) of the MPC, 53 P.S. § 11004(2)(a) and (d)

The second issue is whether Herbert Brothers' challenge was valid in light of the fact that, although it included the certification statement required by section 1004(2)(a), Herbert Brothers had actual knowledge that the board was considering revision of the neighborhood commercial zoning.

The third and fourth issues involve whether the township has provided for its fair share of both multi-family dwellings and neighborhood commercial uses.

1.

In reference to the first issue, the board contends that the challenge to the existing zoning ordinance raised by Cambridge Land Company was not valid because the

[ 126 Pa. Commw. Page 441]

    company failed to comply with section 1004 of the MPC, 53 P.S. § 11004, which requires:

1. A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge . . . .

(b) To the governing body together with a request for a curative amendment under section 609.1.

2. The submissions referred to in subsection (1) shall be governed by the following:

(a) The landowner shall make a written request to the board or governing body that it hold a hearing on his challenge. The request shall contain a short statement reasonably informing the board or the governing body of the matters that are in issue and the grounds for challenge. Such statement shall contain a certification that the landowner did not know at the time of the application (i) that the municipality had resolved to consider a particular scheme of rezoning by publication of notice of hearings on a proposed comprehensive plan or proposed zoning ordinance or otherwise, or (ii) that the scheme of rezoning would be inconsistent with the landowner's proposed use; provided that this rezoning scheme had reached sufficient particularity to disclose that, if adopted, it would cure the defect in the zoning ordinance attacked by the substantive challenge.

(d) If the submission is made to the governing body under subsection (1)(b), the request shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein. (Emphasis added.)

The board contends that Cambridge Land Company did not submit either a certification or a curative amendment with its challenge, and therefore, it failed to meet the ...


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