DocketNumber: Appeal, No. 83 C.D. 1977
Citation Numbers: 35 Pa. Commw. 615
Judges: Blatt, Bowman, Crumlish, Disalle, Menoer, Rogers, Wilkinson
Filed Date: 6/5/1978
Status: Precedential
Modified Date: 6/24/2022
Opinion by
The appellants, Montgomery Development Company and B. C. Associates, filed a petition with the supervisors of Plumstead Township, Bucks County, requesting the amendment of the township zoning ordinance and map so as to rezone their 85 acre tract
The supervisors were initially receptive to the shopping mall proposal but decided to create a new C-3 Planned Shopping Center zoning district rather than to amend the provisions of the C-2 Highway Commercial district. A draft ordinance describing the new C-3 district was prepared with the assistance of the appellants and their counsel. The draft contained a section titled “Area to be Eezoned if this Ordinance is Adopted, ’ ’ which consisted only of a description of the appellants’ 85 acre tract.
The proposed amendment was duly advertised as proposed for adoption at a meeting to be held on January 29, 1976. The supervisors then developed misgivings concerning either the zoning change or the appellants’ project and at the meeting on January 29, 1976 adopted the amendment only after deleting the section describing the appellants’ tract as the area to be rezoned. During the next several months the supervisors continued their consideration of the advisability of rezoning the appellants’ land as requested, assisted in technical matters by a traffic consultant.
On the afternoon of May 18, 1976 the appellants, apparently forewarned of things to come, filed a substantive challenge to the Plumstead Township zoning ordinance pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code,
The court below held that the history of the litigation clearly demonstrated that the appellants’ asserted substantive challenge of the Plumstead Township zoning ordinance made by the vehicle of appeal from the denial of their proposed curative amendment was in reality nothing more than a contrivance for review and reversal of the Plumstead Township’ Board of Supervisors’ refusal to rezone their tract so as to accommodate their proposed shopping mall. Since the actions of municipal bodies on applications for rezoning are not subject to judicial review (Board of Supervisors of Ferguson Township v. Strouse, 16 Pa. Commonwealth Ct. 143, 328 A.2d 177 (1974)), the .court below was impelled to dismiss the appeal. Our.review of the record leads us firmly to the- samé .conclusion and we affirm.
Our conclusion that appellants’ appeal should be dismissed because it is essentially an appeal of a municipality’s refusal to rezone makes it unnecessary for: us to reach the appellants’ other arguments. However, we will comment briefly on the appellants ’ thesis that-,
Order affirmed.
Order
And Now, this 5th day of June, 1978, the order of the Court of Common Pleas of Bucks County dated December 27, 1976, dismissing the appeal of Montgomery Development Company and B. C. Associates, is affirmed.
B. O. Associates was the record owner; Montgomery Development was equitable owner under an agreement to purchase.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §11004.