In re East Whiteland Township Zoning Board
| Decision Date | 27 June 1962 |
| Docket Number | Misc. 1961,120 |
| Citation | 28 Pa. D. & C.2d 107 |
| Parties | In re East Whiteland Township Zoning Board |
| Court | Pennsylvania Commonwealth Court |
James E. O'Neill, Jr., for complainants.
Ralph W. Kent, for East Whiteland Township.
Francis X. Hope, John B. H. Donaldson and Arthur Littleton, for intervenors.
Complaint as to legality of resolution by township board of supervisors.
This is the second skirmish between the Valley Forge Stone Company and the residents of " Down East" in East Whiteland Township, this county, over the application by Valley Forge to obtain a permit to conduct quarrying operations on a tract known as the Patterson tract in said township, of which it is the equitable owner under an agreement of sale with the Patterson estate. In the first, we held that procedural requirements had not been observed in the adoption by the supervisors of a resolution of January 2, 1962, which purported to rescind the resolution now under attack. National Bank of Chester County and Trust Company v. East Whiteland Township, 27 D. & C.2d 351, decided April 16, 1962. In this one, complaint is made as to the legality of a resolution adopted by said supervisors on December 26, 1961, the effect of which was to grant the permit for which Valley Forge had originally made application. See The Second Class Township Code; The Act of May 1, 1933, P. L. 103, sec. 702, as last amended by the Act of June 19, 1961, P. L. 486, sec. 1. In its consideration, our inquiry is limited to the manner in which the resolution was passed and to procedural irregularity: Griffith v. McCandless Township, 366 Pa. 309 (1951); McArthur v. Mt. Lebanon Township, 402 Pa. 78 (1960); Wynnewood Civic Association v. Lower Merion Township, 180 Pa.Super 453 (1956); Alenovitz v. East Whiteland Township, 6 Chester 184 (1954).
All complainants in this action are residents of East Whiteland Township who own and occupy homes in the immediate vicinity of the intersection of Morehall and Swedesford Rds., the tract here in question being located in the northwest corner of that intersection. It has been stipulated that they have standing to raise the complaint here asserted.
The controversy arises under the provisions of section 301 of the Township Zoning Ordinance of 1953. It provides that in an " A-Rural Residence District" (the land here in question being located within such a district), land may be used for certain specified purposes, among which is the following:
Valley Forge made application to the board of adjustment and to the supervisors for a permit to quarry under the provisions of the above-quoted section. Thereafter, the board of adjustment conducted a series of hearings and took considerable testimony, after which on December 14, 1961, it filed a " Decision, " by the terms of which it did " not recommend that Valley Forge Stone Company . . . be permitted to quarry stone on or from the subject tract or tracts of land." The decision also set forth the grounds upon which the board of adjustment based its refusal to make a recommendation.
Following the filing of said decision, the supervisors, at a special meeting held December 26, 1961, adopted the resolution now under attack. The effect of this resolution was to reject the recommendation of the board of adjustment and to permit Valley Forge to conduct its quarrying operation upon the tract in question subject to its observance of the conditions and restrictions set forth in the resolution itself.
Complaint is first made that the action of December 26, 1961, was an attempt to amend the zoning ordinance and that the notice given was not sufficient for this purpose under the law.
We do not believe that by their action December 26, 1961, the supervisors were attempting to amend the zoning ordinance. We come to this conclusion in spite of the position now taken by counsel for the board as presently constituted, that its predecessor was attempting so to do. As we pointed out in our earlier decision, cited above, the function here being performed by the supervisors was an administrative or quasi-judicial one. It did not constitute the adoption of legislation. That in the first case the supervisors withdrew a privilege already conferred, while in this one permission to quarry was granted, is not a distinction which ought to prompt us to alter that conclusion. In this instance, the supervisors acted after the board of adjustment, the eyes and ears of the board of supervisors under the express language of the ordinance, had performed its investigatory function of hearing and reviewing the evidence and making a recommendation thereon. This, as our earlier decision clearly indicates, constituted the fulfillment of a quasi-judicial function: Essick v. City of Los Angeles, 34 Cal.2d 614, 213 P.2d 492 (1950); Rathkopf, The Law of Zoning and Planning (Third ed.), vol. 1, page 54-31, footnote 2. The granting of permits by boards of adjustments in zoning cases has always been considered to be administrative in character: Liggett's Petition, 291 Pa. 109, 117 (1927); Valicenti's Appeal, 298 Pa. 276, 281 (1929); Fleming v. Prospect Park Board of Adjustment, 318 Pa. 582, 584 (1935). In this case, the supervisors, under the terms of the ordinance, have reserved that permit-granting authority unto themselves. This reservation, in our opinion, does not alter the character of the function itself.
Having reached the conclusion expressed above, it now becomes clear that the procedures for amendment set up by The Second Class Township Code and by the zoning ordinance itself were not required to be observed in the adoption of the resolution of December 26, 1961. Indeed, the amendatory procedures contained in the ordinance are directory at best: Pumo v. Norristown Borough, 404 Pa. 475 (1961). When a township causes notice to be published as required by the enabling act, it has done all that it is required to do to validate the action taken: Putney v. Abington Township, 176 Pa.Super 463 (1954).
We note, however, that although the complaint as filed does not specifically so charge, it has been argued by the complainants that the action here attacked was not legally undertaken because the notice of the special meeting of December 26, 1961, did not meet statutory requirements. The Act of June 21, 1957, P. L. 392, sec. 3, as amended, is cited as the one whose requirements have not been observed. Those portions of it which are here material provide as follows:
Notice of the meeting here in question was posted on the front and back doors of the township building on December 22, 1961, as follows:
It is argued that such notice is deficient in two particulars, in that it did not contain either the time or the place of the meeting.
Proponents contend, on the other hand, that these alleged deficiencies in the notice make no difference, because complainants' counsel had actual notice of the time and place of the meeting and at least two of them attended the meeting at which there were some 150 interested persons present, some of whom participated in the discussion.
From the record, it is found that a prior meeting was held at the township office on Thursday evening, December 21, 1961. The meeting was attended by the three supervisors then in office a member of the bar of this court representing " Down East Property Owners," the township solicitor and a member of the bar of Delaware County representing Valley Forge. At that meeting, all present were advised by the then chairman of the board of supervisors...
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