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A zoning ordinance that said only two students could live in a single-family or attached dwelling near Allentown, Pa.’s Muhlenberg College was not properly enacted and therefore void, a split en banc Commonwealth Court has ruled. The court, with two judges dissenting, said the City of Allentown, Pa., did not give the required 30-day notice to the Allentown City Planning Commission and the Lehigh Valley Planning Commission. “Having failed to comply with the mandatory requirements of the MPC and the Codified Ordinances that the proposed bill be submitted to the commissions at least 30 days prior to the hearing, we agree with Muhlenberg that such failure to comply is fatal,” Judge Jim Flaherty wrote for the majority in Muhlenberg College v. Zoning Hearing Board of The City of Allentown, PICS Case No. 00-1641 (Pa. Commw. en banc Aug. 11, 2000). BOOMING ENROLLMENT The decision is a win for the college, which purchased nearby properties to accommodate its growing student population. The private, non-profit, liberal arts college is located in Allentown and expanded its student body in 1997-98 from 1,600 to 1,847 students. According to the opinion, the college did not construct enough housing to support the enrollment boom. The area around Muhlenberg’s campus is zoned medium and low residential and has a number of detached, twin and townhouse units designed for single-family occupancy. Since 1986, Muhlenberg and private investors bought 37 properties adjacent to the college and began placing three to four students in each dwelling. Non-student residents complained of an increase in traffic, parking problems and late-night parties. In 1997, officials drafted an amendment to the zoning code that would prohibit more than two students from living in a single dwelling. The “Student Residence Overlay District Zone” surrounded Muhlenberg’s campus. The amendment, introduced as bill 59-1997, ultimately was defeated by a city council vote. The effective date of that amendment would have been 30 days after it was enacted. The council moved to reconsider the bill, but it was again defeated. At the same meeting, bill 74-1997 was introduced. It was identical to bill 59-1997 except that the new bill became effective in 10 days rather than 30 days. The council forwarded the bill to the planning commissions. The AC Commission recommended the bill, while the LV Commission wrote a letter that said the bill was of “local concern.” The council passed the bill, which became Ordinance 13607. Muhlenberg challenged the ordinance and was rebuffed by both the zoning hearing board and the trial court. Muhlenberg appealed to the Commonwealth Court. Muhlenberg presented seven issues on appeal, but the court addressed only one — whether the city violated the Pennsylvania Municipalities Planning Code. The court answered that question in the affirmative, finding the city did not give the proper notice to the commissions. “Here, bill 74-1997 was submitted to the AC and LV Commissions on Oct. 2, 1997. Thereafter, City Council held a public hearing and voted to adopt bill 74-1997 on Oct. 15, 1997, only 13 days later,” Flaherty wrote. The zoning board argued that timely notice was given because the planning commissions were privy to the earlier amendment, identical to the one ultimately passed. But the court didn’t agree with that reasoning. “Although bill 59-1997 and bill 74-1997 may have been similar, as conceded by the board, they were different in that they had different effective dates,” Flaherty wrote. “As they contained different effective dates they cannot be considered to have been the same and it was thus required that bill 74-1997 be submitted to the commissions at least 30 days before the hearing.” The court said the failure to provide timely notice to the planning commissions was “fatal” to the ordinance. The opinion reversed the trial court’s decision to uphold the ordinance as valid. President Judge Joseph T. Doyle and Judge Bonnie Brigance Leadbetter dissented without filing an opinion.

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