Summary
In Spencer v. Earl Township Board of Supervisors, 23 Pa. Commw. 37, 350 A.2d 214 (1976), we held that an allegation in an application to a governing body for zoning relief that the applicable minimum lot size restrictions were "in violation of the U.S. Constitution" was not a sufficient statement reasonably informing the governing body of the matter and the grounds for the challenge.
Summary of this case from Zagar et al. AppealOpinion
Argued December 4, 1975
January 19, 1976.
Zoning — Exclusionary zoning — Substantive challenge to zoning ordinance — Statutory procedure — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805 — Petition for rezoning — Judicial power.
1. A party seeking to challenge a zoning ordinance substantively must follow the exclusive procedures established therefor in the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, and the exclusionary nature of a zoning ordinance is not properly challenged by filing a petition for rezoning unaccompanied by plans or the proposed curative amendment. [38-9]
2. Courts have no power to compel the enactment of a zoning ordinance nor jurisdiction to entertain an appeal from the denial of a request for rezoning. [39]
Argued December 4, 1975, before Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT. President Judge BOWMAN did not participate.
Appeal, No. 718 C.D. 1975, from the Order of the Court of Common Pleas of Berks County in case of Appeal of Charles C. Spencer, No. 59 April Term, 1974.
Request to the Board of Supervisors of Earl Township for change of zoning. Request denied. Applicant appealed to the Court of Common Pleas of Berks County. Appeal dismissed. BERTOLET, J. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Appeal dismissed.
Barry W. Kerchner, with him Markofski and Kerchner, for appellant.
Alfred W. Crump, Jr., with him Marx, Ruth, Binder, Ward Crump, for appellee.
This is an appeal by Charles C. Spencer from an order of the Court of Common Pleas of Berks County, dated April 24, 1975, which affirmed a refusal of the Board of Supervisors of Earl Township to rezone a tract of land owned by Spencer. Spencer bases his appeal on the allegation that the Township's zoning ordinance is exclusionary; but we conclude that the procedure followed by Spencer was fatally defective and that we must dismiss the appeal without reaching the merits.
In October, 1973, Spencer filed with the Township Supervisors a document entitled "Petition For Change of Zoning." The petition was not accompanied by the "plans and other materials" or the proposed curative amendment required by Sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10609.1, 11004. After a hearing, the Supervisors denied the requested rezoning, and Spencer appealed to the Court of Common Pleas, which affirmed the Supervisors, after determining that Spencer's allegation of exclusionary zoning had no merit.
If a landowner desires to substantively challenge a zoning ordinance, he is bound by the provisions of Section 1004 of the MPC, 53 P. S. § 11004. Section 1001 of the MPC, 53 P. S. § 11001, provides that Article X of the MPC constitutes the exclusive mode for securing review of a zoning ordinance. Appeal of Merlino, 19 Pa. Commw. 143, 339 A.2d 642 (1975); Ellick v. Board of Supervisors of Worcester Township, 17 Pa. Commw. 404, 333 A.2d 239 (1975).
We have recently held that while a court may grant definitive, specific relief to a successful challenger who properly proceeds under Section 1004, we have also repeatedly held that the 1972 amendments to the MPC did not create any power in the courts to order that a municipality take the purely legislative step of amending its zoning ordinance. As we said in Merlino, supra, "the courts have no power to interfere with the legislative process and, therefore, the courts do not have jurisdiction to entertain an appeal from a denial of a petition which is solely a request for rezoning." 19 Pa. Commw. at 146-47, 339 A.2d at 644. See Warren v. Ferrick, 17 Pa. Commw. 421, 333 A.2d 237 (1975) and Board of Commissioners of McCandless Township v. Beho Development Company, 16 Pa. Commw. 448, 332 A.2d 848 (1975).
Our examination of Spencer's petition leaves no doubt that it cannot be considered to be more than a request for rezoning. Indeed, the only portion of the petition which suggests that a "substantive challenge" under Sections 609.1 and 1004 might have been intended is a general allegation that the minimum lot size restrictions in the ordinance are "in violation of the United States Constitution." As our decisions have held, the MPC requires much more.
The Court of Common Pleas had no jurisdiction to hear Spencer's appeal on the merits, and neither do we. Accordingly, the appeal is dismissed.