Swinehart v. Borough of Pottstown

1 Pa. D. & C.3d 405, 1976 Pa. Dist. & Cnty. Dec. LEXIS 117
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedMarch 12, 1976
Docketno. 74-2354
StatusPublished

This text of 1 Pa. D. & C.3d 405 (Swinehart v. Borough of Pottstown) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swinehart v. Borough of Pottstown, 1 Pa. D. & C.3d 405, 1976 Pa. Dist. & Cnty. Dec. LEXIS 117 (Pa. Super. Ct. 1976).

Opinion

STANZIANI, J.,

CASE SUMMARY

Stanley and Viola Swinehart, appellants herein, are the owners of a 5.6 acre tract of land located in the 6th ward of the Borough of Pottstown, appellee herein. An amendment to the Pottstown Zoning Ordinance whereby land in the 6th ward zoned R-3 would be rezoned to R-l, a more restrictive classification, was proposed by the Pottstown Borough Council. The effect of the amendment, inter aha, would be to rezone appellants’ property. On October 31, 1973, a public hearing on the zoning amendment was held and thereafter, on January 23, 1974, the ordinance was enacted into law by the Burgess and Town Council of the Borough of Pottstown.

Appellants perfected an appeal, on February 20, 1974, from the enactment of the ordinance, citing substantive and procedural bases for their conclusion that the ordinance was improperly enacted. Appellees then filed a motion to quash the appeal contending appellants failed to follow the proce[407]*407dure mandated by the Municipalities Planning Code as the exclusive means for securing review of the substantive validity of an ordinance adopted pursuant to that code. After argument before this court en banc, the motion to quash was granted insofar as the appeal raised substantive questions concerning the validity of the ordinance but was dismissed to the extent the appeal raised procedural questions. Dismissal of the substantive aspect of the appeal was without prejudice to the proper reinstitution of such an appeal.

The procedural issues raised by the zoning appeal came before the court en banc on December 15, 1975 and on January 13, 1976, the court en banc entered an order dismissing the procedural aspect of the appeal. Appellants then filed the instant appeal to the Commonwealth Court on February 2, 1976.

FACTS

The Pottstown Borough Council, hereinafter the council, at a regularly stated meeting held July 9, 1973, passed a resolution fixing a hearing date of August 20, 1973 for a public hearing on a proposal initiated by the council to rezone property in the 6th ward of the Borough of Pottstown, including appellants’ property, from an R-3 classification to the more restrictive R-l classification.

On July 9, 1973, appellants’ attorney directed correspondence to the council advising of his representation of appellants, noting his objection to any zoning change, and requesting notice of the particulars of the hearing. By correspondence dated July 12 and July 16, 1973, appellants’ attorney advised the council that his vacation plans and those of a principal witness conflicted with the [408]*408August 20 hearing date and requested a continuance. The hearing date was continued on that basis and was subsequently continued again, upon the request of the council, to October 31, 1973.

At a special meeting held October 12, 1973, the council adopted a resolution formally setting October 31, 1973 as the hearing date. Notice of the date, time and place of the hearing was published in a Pottstown newspaper on October 15 and October 22, 1973. The council claims to have orally notified appellants’ attorney of this date for hearing. By letter of October 2, 1973 directed to the council, appellants’ attorney requested certain documents “In preparation for the October 31 zoning hearing.”

The zoning hearing was held October 31, 1973. After objecting preliminarily to the legality of the hearing on the basis of inadequate notice and the setting of the final hearing date at a special meeting of council, which objections were dismissed, appellants’ attorney attempted to call individual members of council as appellants’ witnesses but the solicitor for the council refused to permit council members to testify. The council then presented a consultant to the Borough Planning Commission as a witness. Following the consultant’s testimony, appellants’ attorney requested cross-examination of the witness but was denied. A member of council, however, was permitted to ask questions of this witness. Appellants then presented the testimony of a land use expert contra the proposed zoning change which presentation also included charts and documentary exhibits. At the conclusion of this witness’ presentation, appellants opened the floor to anyone who wished to [409]*409question the witness. Appellants’ son, holder of a power of attorney from his father and himself a landowner in the area in question, also testified in opposition to the proposed zoning change. He claimed neither he nor his father received notice of the hearing. Finally, private citizens were permitted to express their views.

On January 23, 1974, appellee enacted an ordinance rezoning the subject area from R-3 to R-l based on the council’s determination, as a result of the hearing, that the rezoning was in the best interests of the public health, safety and general welfare.

ISSUES

ISSUE ONE. Under the Pottstown Borough Zoning Code and the Municipalities Planning Code, may a public hearing on a proposed zoning amendment properly be held where the time and place of said hearing were originally fixed by resolution adopted at a stated meeting of the Borough Council but a continued hearing date was later fixed at a special meeting of the borough council?

ISSUE TWO. Were appellants afforded requisite notice of the public hearing in accord with the Pottstown Borough Zoning Code and the Municipalities Planning Code?

ISSUE THREE. At a public hearing on a proposed zoning amendment are members of the public, through their attorney, precluded from calling members of the governing body of the municipality as witnesses and from examining or cross-examining witnesses called to testify by the municipality and are these issues substantive or procedural in nature?

[410]*410DECISION

ISSUE ONE

Conclusion — The date, time and place of the public hearing on the proposed zoning amendment were fixed in accord with both the Pennsylvania Municipalities Planning Code of July 31, 1968, P.L. 805, 53 P.S. §10101 et seq., the controlling law, and the Pottstown Borough Zoning Code.

Appellants insist the hearing was improperly held since the date, time and place thereof were not fixed at a stated meeting of the council as required by Section 202.3 of the Pottstown Borough Zoning Code, which provides as follows:

“In any case where a public hearing is to be held by Borough Council on a proposed amendment, Council by resolution adopted at a stated meeting shall fix the time and place of the public hearing on the proposed amendment and cause notice thereof to be given in accordance with the provisions of Section 12211 of this ordinance.”

It is unrefuted that the original hearing date in this matter was adopted at a stated meeting of council and it was only the continued hearing date, a continuance having first been requested by appellants, which was fixed by resolution adopted at a special meeting of council. It follows that appellants must be considered to have waived any objection in this regard since it was they who initiated postponement of the first scheduled hearing. Further, the Municipalities Planning Code contains no requirement that a hearing date be fixed at a stated meeting of the governing body of a municipality and in fact its mandate is far less [411]*411stringent than that of section 202.3 of the Pottstown Borough Zoning Code.

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Related

Putney v. Abington Township
108 A.2d 134 (Superior Court of Pennsylvania, 1954)
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208 A.2d 853 (Supreme Court of Pennsylvania, 1965)
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172 A.2d 828 (Supreme Court of Pennsylvania, 1961)

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Bluebook (online)
1 Pa. D. & C.3d 405, 1976 Pa. Dist. & Cnty. Dec. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swinehart-v-borough-of-pottstown-pactcomplmontgo-1976.