Blade Mulla, Inc. v. Carlson

Concurring Opinion by

Judge Rogers:

On December 30, 1969, there were two ordinances here relevant on the books of Hempfield Township, Westmoreland County, a planning ordinance and a mobile home park ordinance. Under the latter, plans for mobile home parks were made subject to approval by the township supervisors. On December 30, 1969 the appellant filed, for approval under the mobile home park ordinance, plans for a mobile home park in the township. On December 31, 1969 the township supervisors enacted a zoning ordinance which, inter alia, prohibited the use of land for mobile home park purposes in the district in which the appellant’s proposed park is located. The zoning ordinance became effective January 5, 1970. On February 6, 1970 the supervisors approved the appellant’s plan as in compliance with its mobile home park ordinance. No application for approval of the park under the township’s planning ordi*385nance was made, nor does it appear that such was necessary since that ordinance appears to be only a copy of certain provisions of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. , 53 P.S. §10101 et seq., authorizing governing bodies to adopt subdivision regulations.

I concur in the result in this case because the Pennsylvania Municipalities Planning Code, effective at the time this litigation was conducted, did indeed require that appeals from the governing body’s action in approving or disapproving land development plans could only be taken by parties which had appeared before the governing body. The appellees did not appear in any formal sense at hearings before the Hempfield Board of Supervisors when the approval of appellant’s plan was under consideration by that body.

I do not concur in the implication of the majority’s opinion that a municipal governing body or any agency of the municipality may approve a land use contrary to the provisions of its zoning ordinance where, as here, the application for such use was made during the pendency of the ordinance. If the township supervisors intended by its approval of appellant’s plan under its mobile home park ordinance to approve the use of appellant’s property in this district contrary to its zoning ordinance, its action would be in my opinion discriminatory and unconstitutional.