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VILLAGE 2 AT NEW HOPE (04/24/68)

decided: April 24, 1968.

VILLAGE 2 AT NEW HOPE, INC. APPEALS


Appeals from orders of Court of Common Pleas of Bucks County, Dec. T., 1965, Nos. 321 and 372, Jan. T., 1966, Nos. 667 and 892, and May T., 1966, No. 2952, in cases of Sheldon Cheney, Martha Cheney, Paul Evans et al. v. Village 2 at New Hope, Inc., mayor and borough council et al.

COUNSEL

Lenard L. Wolffe, with him Edward I. Dobin, Carl K. Zucker, and Curtin & Heffner, for appellant.

William Miller, of the New Jersey Bar, with him David H. Moskowitz, for appellees.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Roberts

[ 429 Pa. Page 628]

Under traditional concepts of zoning the task of determining the type, density and placement of buildings which should exist within any given zoning district

[ 429 Pa. Page 629]

    devolves upon the local legislative body. In order that this body might have to speak only infrequently on the issue of municipal planning and zoning, the local legislature usually enacts detailed requirements for the type, size and location of buildings within each given zoning district, and leaves the ministerial task of enforcing these regulations to an appointed zoning administrator, with another administrative body, the zoning board of adjustment, passing on individual deviations from the strict district requirements, deviations known commonly as variances and special exceptions. At the same time, the overall rules governing the dimensions, placement, etc., of primarily public additions to ground, e.g., streets, sewers, playgrounds, are formulated by the local legislature through the passage of subdivision regulations. These regulations are enforced and applied to individual lots by an administrative body usually known as the planning commission.

This general approach to zoning fares reasonably well so long as development takes place on a lot-by-lot basis, and so long as no one cares that the overall appearance of the municipality resembles the designed achieved by using a cookie cutter on a sheet of dough. However, with the increasing popularity of large scale residential developments, particularly in suburban areas, it has become apparent to many local municipalities that land can be more efficiently used, and developments more aesthetically pleasing, if zoning regulations focus on density requirements rather than on specific rules for each individual lot. Under density zoning, the legislature determines what percentage of a particular district must be devoted to open space, for example, and what percentage used for dwelling units. The task of filling in the particular district with real houses and real open spaces then falls upon the planning commission usually working in conjunction with

[ 429 Pa. Page 630]

    an individual large scale developer. See Chrinko v. South Brunswick Twp. Planning Bd., 77 N.J. Super. 594, 187 A.2d 221 (1963). The ultimate goal of this so-called density or cluster concept of zoning is achieved when an entire self-contained little community is permitted to be built within a zoning district, with the rules of density controlling not only the relation of private dwellings to open space, but also the relation of homes to commercial establishments such as theaters, hotels, restaurants, and quasi-commercial uses such as schools and churches. The present controversy before this Court involves a frontal attack upon one of these zoning districts, known in the trade as a Planned Unit Development (hereinafter PUD).

Spurred by the desire of appellant developer to construct a Planned Unit Development in the Borough of New Hope, in December of 1964 borough council began considering the passage of a new zoning ordinance to establish a PUD district in New Hope. After extensive consultation with appellant, council referred the matter to the New Hope Planning Commission for further study. This body, approximately six months after the project idea was first proposed, formally recommended to council that a PUD district be created. Council consulted with members of the Bucks County Planning Commission on the text of the proposed ordinance, held public hearings, and finally on June 14, 1965 enacted ordinance 160 which created the PUD district, and ordinance 161 which amended the borough zoning map, rezoning a large tract of land known as the Rauch farm from low density residential to PUD. Pursuant to the procedural requirements of ordinance 160, appellant presented plans for a Planned Unit Development on the Rauch tract to the borough planning commission. These plans were approved on November 8, 1965, and accordingly four days later two

[ 429 Pa. Page 631]

    building permits, known as zoning permits 68 and 69, were issued to appellant. (Some question exists as to the current status of these permits, see text infra.) Subsequently, permit number 75 was issued. Appellees, all neighboring property owners opposing the issuance of these permits, appealed to the zoning board of adjustment. The board, after taking extensive testimony, upheld ordinances 160 and 161 and accordingly affirmed the issuance of the permits. Appellees then appealed to the Court of Common Pleas of Bucks County. That tribunal took no additional testimony, but reversed the board, holding the ordinances invalid for failure to conform to a comprehensive plan and for vesting too much discretion in the New Hope Planning Commission. This Court granted certiorari under Supreme Court Rule 68 1/2.

The procedural posture of this case is identical to that of National Land & Investment Co. v. Easttown Twp. Bd. of Adjustment, 419 Pa. 504, 523, 215 A.2d 597, 607 (1965). Our scope of review may thus be stated by reference to that decision: "The zoning enabling act being silent as to a right of appeal, we consider this case on broad certiorari, reviewing the testimony, the evidence, and the entire record. Keystone Raceway Corp. v. State Harness Racing Comm'n, 405 Pa. 1, 173 A.2d 97 (1961); Schmidt v. Philadelphia Zoning Bd. of Adjustment, 382 Pa. 521, 114 A.2d 902 (1955). Because the court below took no additional testimony, we will look at the decision of the board of adjustment to determine if, in upholding . . . [ordinances 160 and 161], the board committed an abuse of discretion or an error of law. Upper Providence Twp. Appeal, 414 Pa. 46, 198 A.2d 522 (1964)." Applying this standard, we hold that no error of law or abuse of discretion was committed by the New Hope Board of Adjustment, and that therefore the Court of Common Pleas of Bucks County must be reversed.

[ 429 Pa. Page 632]

I.

Approximately one year before the PUD seed was planted in New Hope, borough council had approved the New Hope Comprehensive Plan. This detailed land use projection clearly envisioned the Rauch tract as containing only single family dwellings of low density. The court below therefore concluded that the enactment of ordinance 160, and more specifically the placing of a PUD district on the Rauch tract by ordinance 161 was not "in accordance with a comprehensive plan," as required by the Act of February 1, 1966, P. L. (1965) 1656, § 3203, 53 P.S. § 48203. See also Eves v. Zoning Bd. of Adjustment, 401 Pa. 211, 164 A.2d 7 (1960).

The fallacy in the court's reasoning lies in its mistaken belief that a comprehensive plan, once established, is forever binding on the municipality and can never be amended. Cases subsequent to Eves have made it clear, however, that these plans may be changed by the passage of new zoning ordinances, provided the local legislature passes the new ordinance with some demonstration of sensitivity to the community as a whole, and the impact that the new ordinance will have on this community. As Mr. Chief Justice Bell so artfully stated in Furniss v. Lower Merion Twp., 412 Pa. 404, 406, 194 A.2d 926, 927 (1963): "It is a matter of common sense and reality that a comprehensive plan is not like the law of the Medes and the Persians; it must be subject to reasonable change from time to time as conditions in an area or a township or a large neighborhood change." This ...


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