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ABEL v. TOWNSHIP MIDDLETOWN (12/04/72)

decided: December 4, 1972.

ABEL, ET AL.
v.
TOWNSHIP OF MIDDLETOWN



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Gwen D. Abel and George G. Abel, III, v. Township of Middletown, Middletown (Lima), Pa., No. 249 of 1971.

COUNSEL

Rodger L. Mutzel, with him John W. Nilon, Jr., and Kassab, Cherry, Curran & Archbold, for appellant.

John W. Wellman, with him Joseph T. Labrum, Jr., Francis T. Sbandi, and Fronefield, deFuria and Petrikin, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 7 Pa. Commw. Page 8]

This is an appeal from an order of the Court of Common Pleas of Delaware County, dated February 14, 1972, approving a Land Use Plan for a Planned Residential Development (PRD) submitted by Gwen D. Abel and George G. Abel, III (Abels) to the Supervisors of the Township of Middletown (Township). By virtue of the court's order, the Township's disapproval of the Land Use Plan was reversed, and the matter was remanded to the Township for further proceedings, the court having granted the Abels leave to file their applications for preliminary and final approval of the PRD.

The procedural aspects of this case are confusing, because the Township attempted to expand the powers granted to it under the provisions of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. , No. 247, art. I, Section 101 et seq., 53 P.S. § 10101 et seq., and more specifically the provisions of Article VII of that Act, 53 P.S. § 10701 et seq.

On August 10, 1970, pursuant to the enabling provisions of the MPC, the Board of Supervisors of the Township adopted Ordinance No. 136, and on October 12, 1970, adopted Ordinance No. 139 amending Ordinance No. 136. These Ordinances were intended to establish the procedures and requirements for the implementation of a Planned Residential Development Use within the Township. In addition to the usual provisions of a Planned Residential Development Ordinance, the Township included a procedural requirement mandating the prior approval of a Land Use Plan before the presentation of an application for preliminary approval of a PRD. The Ordinances make it quite clear that this required prior approval was a condition precedent to the filing of an application for a preliminary approval of a PRD.

[ 7 Pa. Commw. Page 9]

Section 951 of the Ordinances states: "The administration of the procedures concerning the application for and approval of Planned Residential Developments (PRD) shall be vested solely in the Board of Supervisors. . . . (a) Prior to the presentation of an application for a preliminary approval of a Planned Residential Development to the Board of Supervisors, the developer shall present a land use plan of the tract to the Board of Supervisors for their review and approval, which plan shall include the proposed development of the over all tract, including: (1) the types and numbers of dwelling units; and (2) the proposed use of the open space. (b) No preliminary or final plans shall be considered by the Board of Supervisors without prior approval of the land use plan, and review and comment by the Delaware County and Middletown Township Planning Commissions."

On October 12, 1970, the Abels informally discussed with the Board of Supervisors of the Township the possibility of developing their 80-acre tract as a PRD. On November 10, 1970, the Abels again appeared before the Board regarding their proposal. Absent a hearing, the Board, by letter dated December 10, 1970, notified the Abels that, on December 2, 1970, their request for approval of their Land Use Plan submitted under the Township's Ordinance No. 136 was denied. This notice specifically mentioned Section 951(a). On January 8, 1971, the Abels filed a zoning appeal in the Court of Common Pleas of Delaware County from the letter, dated December 10, 1970. The court by opinion, dated April 13, 1971, held that the prior approval required by the above-quoted ordinances ". . . is an unauthorized expansion of the powers conferred upon it by the Municipalities Planning Code, where the power to reject and deny such Land Use Plan is claimed by the Township not to be subject to judicial review." Having thus

[ 7 Pa. Commw. Page 10]

    exposed the unauthorized expansion of power, the court, nevertheless, determined thereafter that the matter should be remanded to the Board of Supervisors of the Township for the purpose of conducting an evidentiary hearing on the merits of the Abels' Land Use Plan in accordance with Section 708 of the MPC, 53 P.S. § 10708.*fn1 Thereafter the Board of Supervisors held a hearing in June of ...


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