Pheasant Run Civic Organization v. Board of Commissioners

Opinion by

Judge Craig,

Pheasant Bun Civic Organization and several individuals (objectors) appeal an order of the Court of Common Pleas of Westmoreland County which affirmed a decision of the Zoning Hearing Board of Penn Township (board) which the objectors have opposed.

In early 1979, appellee Leybold-Heraeus Vacuum Products, Inc. (landowner) filed a zoning amendment petition, requesting the rezoning of a 25.07 acre tract of land it owned from M-l (Light Industrial) to M-2 (Heavy Industrial). The request did not specify any proposed use for the property, but only proposed use of tbe tract for “permitted uses under tbe M-2 zoning classification. ’ ’

After several bearings, tbe Penn Township Board of Commissioners (commissioners) adopted tbe requested zoning ordinance amendment on March 12, 1979. Tbe objectors filed an appeal to tbe board on April 10, alleging that tbe amendment was substantively¹ invalid; no attack upon tbe enactment procedure was raised. In a letter attached to tbe appeal, tbe objectors ’ counsel specified that tbe appeal was taken pursuant to Section 1005 of tbe Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §11005,² and requested a bearing.

Section 1005, titled “Validity of ordinance; substantive questions; appeals by person aggrieved” states in part:

Persons aggrieved by a nse or development permitted on the land of another by an ordinance or map or any provision thereof who desire to challenge its validity on substantive grounds shall first submit their challenge to the zoning hearing board for a report thereon under Section 910. . . .

The board upheld the commissioners’ adoption of the ordinance in its decision of August 1,1979.

The objectors’ appeal to common pleas court, also taken under Section 1005, followed. After careful consideration of all the objectors’ challenges, the court based its decision to dismiss the appeal on its conclusion that the board had not committed an abuse of discretion or an error of law in affirming the commissioners ’ action.

The current appeal rests on the same grounds as those advanced below. However, because we conclude that the procedure followed by the objectors was jurisdictionally infirm, we must dismiss the appeal without reaching the merits.

When the board of commissioners, as a governing body, acted upon the rezoning application, it was acting in its legislative capacity. McCandless Township v. Beho Development Corp., 16 Pa. Commonwealth Ct. 448, 452, 332 A.2d 848, 851 (1975). Thus, because courts have no power, to interfere with that strictly legislative process, Greensburg Planning Commission v. Cabin Hill, Inc., 19 Pa. Commonwealth Ct. 324, 339 A.2d 594 (1975), the commissioners’ determination to grant or deny the application is not subject to direct judicial review. See Ryan, Pennsylvania Zoning Law and Practice §9.6.1 (1979).

A necessary precondition to the substantive challenge of an ordinance is the existence of a specific use to which the property is sought to be developed; an objector may not bring a substantive validity chailenge against an ordinance amendment -where the landowner has not applied for a specific nse and the zoning officer has not issued a use or occupancy permit for the property. Northampton Residents Association v. Northampton Township Board of Supervisors, 14 Pa. Commonwealth Ct. 515, 322 A.2d 787 (1974); Gerstley v. Cheltenham Township Commissioners, 7 Pa. Commonwealth Ct. 409, 299 A.2d 657 (1973).

The terms of Section 1005 of the MPC support the conclusion stated; the “person” attempting the challenge must be “aggrieved by a use or development permitted on the land of another....”

Where, as here, there is no application for a specific use and no use or occupancy permits are issued under the amendment before the date of the objectors ’ appeal, the appeal from the commissioners’ action granting the rezoning application is ineffective.³ Neither the board, the court below nor this court have jurisdiction because there is no case or controversy ripe for judicial intervention. Gerstley, supra.

Accordingly, the appeal is quashed.⁴

Order

And Now, June 25,1981, the appeal is quashed.

1 The appellants specified as reasons for their claim that the amendment:

(a) permits the construction of heavy industrial facilities on the Leybold property and, thus, condones a significant and needless deterioration of the pure air and water found in the Pheasant Bun area. The Ordinance is therefore arbitrary and capricious and constitutes a threat to the health, safety, welfare and morals of the community;

(b) creates a heavy industrial zone close to an B-l residential zone and is, thus, contrary to principles of sound planning, arbitrary and capricious, and a threat to the health, safety, welfare and morals of the community;

(c) is in direct conflict with the Statement of Community Development Objectives set forth in the Comprehensive Plan for Penn Township adopted in 1977, and is, thus, arbitrary, capricious and a threat to the health, safety, welfare and morals of the community.

2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §11005.

3 Only an attack upon the procedure of enactment, under MPO §1003, 53 P.S. §11003, may be pursued in the abstract; no enactment procedure issue is involved here.

4 We note that counsel for the landowner and board did not raise lack of jurisdiction before the court below as they do now in an alternate argument before us. Although that fact may explain the common pleas court’s failure to dismiss on that ground, it does not bar us from doing so. A court has the duty to raise, sua sponte if necessary, the issue of its power to hear an action, and the parties may not confer jurisdiction over a cause of action or the subject matter of an action by consent or agreement. Lashe v. Northern York School District, 52 Pa. Commonwealth Ct. 541, 417 A.2d 260 (1980).