The opinion of the court was delivered by: President Judge Leadbetter
Argued: September 8, 2008
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
Board of Supervisors of North Cornwall Township and a number of individuals appeal the entry of a Preliminary Injunction and denial of Motion to Dissolve or Modify the Preliminary Injunction by the Court of Common Pleas of Lebanon County.
This case, which is one of several related cases currently pending both before common pleas and this Court,*fn1 results from the re-zoning of 95 acres of land in North Cornwall Township (Township) from agricultural (A) and office and institutional (O&I) to general commercial (C-2), and the effort of various landowners to reverse that action. Through ordinances passed between 2003 and October 2007, the land at issue in this case was zoned C-2.*fn2 The parcel owned by Springwood was previously zoned agricultural.
Appellant, Michael "Kip" Kelly, was elected as a member of the Board of Supervisors (Board) in November 2007 and took office on January 7, 2008. Kelly ran his campaign as an opponent of commercial development in North Cornwall Township and spoke out in opposition to Wal-Mart during the conditional use hearing process. Ironically, in the spring of 2006, Kelly and his architectural firm, Nest Architecture, were engaged by Springwood to provide consulting and design services. Simultaneous to his engagement with Springwood, Kelly worked with citizen groups to oppose commercial development in the Township. Consequently, Springwood filed an action against Kelly in the court of common pleas alleging a breach of duty and loyalty.
In January 2008, several landowners in the re-zoned area submitted a Petition for Zoning Map Amendment (Petition) to the Board, attempting to return the area to its previous zoning. The package submitted included a cover letter explaining their reasons for requesting re-zoning, the Petition, maps, letters from the Lebanon County Planning Commission regarding the re-zoning from A and O&I to C-2, a letter from Wayne W. Grafton, AICP*fn3 opining that C-2 zoning was inconsistent with the Township Comprehensive Plan, and the proposed zoning ordinance. On March 2, 2008, Springwood filed a Motion for Preliminary Injunction requesting that common pleas enjoin the Board from acting on Appellants' Petition and enjoin Kelly from participating in any action involving or affecting Springwood or the Springwood property. Following a hearing on March 7, 2008, common pleas issued the requested preliminary injunction.*fn4 This appeal followed.
Appellants first assert that common pleas erred in finding that they did not have the right or standing to request re-zoning under Section 609 of Municipalities Planning Code*fn5 (MPC), 53 P.S. §10609, by petition to the Board. Common pleas determined that the MPC does not authorize Appellants to request re-zoning. In its opinion, common pleas states:
As we read the MPC, a request for rezoning may only be brought by the landowner.the Resident Defendants did not have standing to request rezoning of property of which they are not owners. The Resident Defendants could have sought rezoning of their parcels, and the Board of Supervisors would then be called upon to consider whether such rezoning is in the best interest of the community.
Finally, although captioned as a Petition to Amend Zoning Map, we find that the Petition is a veiled attempt to attack the current zoning ordinance on substantive grounds as indicated in the cover letter submitted to the Board of Supervisors and the Petition itself....
[W]e find that Resident Defendants submitted a substantive challenge to the ordinance and the Board of Supervisors is without jurisdiction to consider the substantive challenges raised by the Resident Defendants.
Opinion at 17-18 (citations omitted).
Appellants assert that the trial court erred in finding that the Petition was a substantive validity challenge, or curative amendment, to the Zoning Ordinance pursuant to Section 609.1*fn6 of the MPC, 53 P.S. §10609.1, rather than a simple request for re-zoning pursuant to 53 P.S. §10609. A curative amendment*fn7 is a challenge to the substantive validity of a zoning ordinance and requires the governing body to act as a quasi-judicial body. A validity challenge generally attacks zoning on substantive due process grounds, i.e., whether an ordinance is substantially related to a legitimate interest. See In re Realen Valley Forge Greenes Assocs., 576 Pa. 115, 132, 838 A.2d 718, 728 (2003) (In reviewing an ordinance to determine its validity, courts must generally employ a "substantive due process inquiry, involving a balancing of landowners' rights against the public interest sought to be protected by an exercise of the police power."). In contrast, a request for re-zoning pursuant to Section 909.1*fn8 of the MPC, 53 P.S. § 909.1, requires the governing body, in this case the Board, to act in its legislative capacity and determine whether the re-zoning is in the best interest of the community.*fn9
Landowners must strictly comply with all procedural requirements found in Section 609.1 of the MPC, 53 P.S. §10609.1, so that local governing bodies can distinguish between requests for re-zoning and challenges to the validity of ordinances. Baker v. Chartiers Twp., 641 A.2d 688, 690 (Pa. Cmwlth.) appeal denied, 539 Pa. 655, 651 A.2d 542 (1994), citing Beh v. City of Scranton, 560 A.2d 276 (Pa. Cmwlth. 1989). "Unless the governing body is specifically advised that the challenge procedure is being invoked, it will view an application as involving a simple request for rezoning." Baker, 641 A.2d at 690 citing ...