Appeal from Common Pleas Court, Lackawanna County; Honorable James J. Walsh
Brion W. Kelley, Kingston, for appellant.
Andrew Hailstone, Stephen W. Saunders, Scranton, for appellee, Moses Taylor Hosp.
Robert T. Gownley, Jr., Acting City Sol., Scranton, for City of Scranton.
James W. McNulty, Sol., Scranton, for City Council.
Craig and McGinley (p.), JJ., and Narick, Senior Judge.
[ 126 Pa. Commw. Page 483]
Glover M. Beh appeals an order by President Judge Walsh of the Court of Common Pleas of Lackawanna County which upheld the City of Scranton's amendment of its zoning ordinance to rezone land owned by Moses Taylor Hospital (MTH) from R-1 to C-2. We affirm.
On November 25, 1987, MTH applied to the City Council of Scranton for an amendment to the Scranton City Zoning Ordinance to rezone 7.57 acres of land from R-1 classification to C-2 so that MTH could construct a medical office building on that site. MTH submitted an application in support of the proposed amendment and preliminary plans
[ 126 Pa. Commw. Page 484]
for the building. The city planning commission reviewed the application and, following a public hearing, voted unanimously not to recommend to council that the proposed rezoning amendment be enacted.
The council held a public hearing on March 30, 1988, and heard testimony from supporters and opponents of the application. On April 6, 1988, council voted in favor of the proposed amendment by a 3-to-1 margin, with one abstention. The mayor of Scranton signed the amendment on April 7.
On April 21, 1988, Beh, alleging procedural defects in the enactment of the amendment, appealed the city's decision to the Common Pleas Court of Lackawanna County. MTH filed a notice of intervention on May 11. On June 21, an evidentiary hearing was held before Judge O'Malley of the common pleas court concerning Beh's request for a supersedeas and MTH's petition to require Beh to post a bond.*fn1 On September 12, 1988, after hearing arguments, President Judge Walsh denied Beh's appeal.
Beh now appeals to this court contending that, because section 7.804 of the City of Scranton Zoning Ordinance and section 659 of the Second Class A City Code*fn2 require a two-thirds or three-fourths majority voting margin, respectively, for amendment adoption when objectors present a proper written protest, council's majority vote was insufficient. Alternatively, Beh asserts that MTH's application for rezoning, accompanied by various other documents, was actually a request for a curative amendment which MTH did not file in timely fashion.
Before we can determine whether a super-majority voting margin is necessary to adopt the proposal, we must first resolve the issue of whether MTH's application is, in fact, a request for a curative amendment.
[ 126 Pa. Commw. Page 485]
Section 609 of the Pennsylvania Municipalities Planning Code (MPC)*fn3 specifies the procedure for adopting all zoning ordinance amendments. This section does not specify any content requirements to be included when landowners seek amendments from the governing body by a legislative petition. However, section 609.1 of the MPC, 53 P.S. § 10609.1, titled "Procedure Upon Curative Amendments," states that "[a] landowner who desires to challenge on substantive grounds the validity of an ordinance. . . may submit a curative amendment to the governing body with a written request that his challenge and proposed amendment be heard and decided as provided in section 1004." (Emphasis ...