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NOLAN A. PERIN AND DIANE M. PERIN v. BOARD SUPERVISORS WASHINGTON TOWNSHIP AND GORDON SAUL (08/01/89)

decided: August 1, 1989.

NOLAN A. PERIN AND DIANE M. PERIN, HIS WIFE, APPELLANTS,
v.
BOARD OF SUPERVISORS OF WASHINGTON TOWNSHIP AND GORDON SAUL, APPELLEES



Appeal from Common Pleas Court, Northampton County, Honorable William F. Moran, Judge.

COUNSEL

Anthony J. Martino, Roseto, Zito, Martino and Karasek, Bangor, for appellants.

Dominic J. Ferraro, Nazareth, for appellee, Washington Tp.

William H. Agnew, Nazareth, for appellee, Bd. of Sup'rs of Washington Tp.

Wesley M. Wasylik, Bartos, Broughal & Wasylik, Bethlehem, for intervenor, Gordon Saul.

Craig, Doyle and Palladino, JJ.

Author: Craig

[ 128 Pa. Commw. Page 316]

Nolan A. and Diane M. Perin appeal from an order of Judge William F. Moran of the Court of Common Pleas of Northampton County that dismissed their procedural challenge to the enactment of an amendment to the zoning ordinance of Washington Township. This court affirms.

As found by the trial court, the Board of Supervisors of Washington Township convened a public hearing on December 7, 1987, for the purpose of eliciting public comment and opinion regarding a proposed amendment to the Washington Township Zoning Ordinance. The proposal was to rezone thirteen acres of a twenty-acre lot from agricultural to commercial, which would permit the construction of a shopping center.*fn1 The Perins appeared at the public hearing and presented evidence in opposition to the change, and their counsel cross-examined witnesses in favor of the proposal. On December 9, 1987, the board held its regularly scheduled monthly meeting and adopted the amendment.

The Perins filed a notice of appeal with the common pleas court on January 5, 1988, asserting both substantive and procedural challenges to the amendment. Section 1003 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11003,*fn2 permitted questions of an alleged defect in the process of enactment of an ordinance or map to be raised by an appeal taken directly from action of the governing body to the court.*fn3

[ 128 Pa. Commw. Page 317]

The Perins' notice of appeal contained the following averments:

3. Your Appellants believe and therefore aver that the action of the Board of Supervisors of Washington Township was improper, and violated substantive, procedural, and the common law of the Commonwealth of Pennsylvania in that:

(g) Your Appellants submit that the procedure employed by the Board of Supervisors to enact an amendment to the Zoning Ordinance of Washington Township was defective.

(k) Your Applicant submits that the Board of Supervisors failed and neglected to cause a record to be made of the Hearings pursuant to the enactment procedure.

On February 10, 1988, counsel for the Perins, the board of supervisors and the intervenor developer appeared before the court during the regularly scheduled motions court. The court granted the Perins' motion requesting an order to the board to file the record of the hearing before them and directed the parties to file letter briefs. The Perins filed a letter brief on February 12, 1988, which, for the first time, alleged with particularity that the board failed to provide proper notice of the December 7 public hearing. The board filed a letter brief objecting to what it characterized as an effort by the Perins in their brief to raise new procedural grounds in an untimely manner. The developer's brief argued that the Perins' notice of appeal concisely set forth grounds for the appeal only in relation to the claim of failure to make a record of the public hearing. On February 19, 1988, the board filed an affidavit of the ...


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