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decided: September 11, 1973.


Appeal from the Order of the Court of Common Pleas of Berks County in case of In Re: Appeal of Doran Investments from the Decision of the Board of Commissioners of the Muhlenberg Township Denying Tentative Approval of Applicant's Preliminary Plan Under the Township's Ordinance 106 known as the "Planned Residential Development Ordinance of Muhlenberg," No. 185 May Term, 1972.


Joseph E. DeSantis, with him Brett A. Huckabee and McGavin, DeSantis & Koch, for appellant.

G. Alan Kramer, with him Emmanuel H. Dimitriou and Lieberman, Dimitriou & Kramer, for appellee, Township.

Bernard Mendelsohn, with him Baskin, Mendelsohn & Leisawitz, for appellee, Citizens.

John P. Trevaskis, Jr., with him J. Scott Calkins, Trevaskis, Doyle, Currie, Nolan & Bunting and Shaffer, Calkins & Balaban, for Amicus Curiae.

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

Author: Rogers

[ 10 Pa. Commw. Page 146]

This case concerns planned residential developments provided for by Article VII of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10701 et seq. It presents important questions concerning the power of governing bodies to withhold tentative approval of plans which conform to planned residential development ordinances enacted pursuant to Article VII.

Appellant, Doran Investments, a limited partnership primarily engaged in real estate investment, applied to the Muhlenberg Township, Berks County, Board of Commissioners for tentative approval of a planned residential development pursuant to the township's legislation on the subject, denominated, and sometimes hereinafter referred to as, Ordinance No. 106. Doran's development would consist of 14 single family homes, 56 garden apartment rental units, and 133 town house rental units located on some 45 acres, of which 10 acres bordering a creek will be left as open space for recreational use. Muhlenberg Township has a comprehensive plan and a zoning ordinance. The Doran tract is located in an area proposed by the comprehensive plan for medium density residential use. It is located in a zoning district permitting single family dwellings on 8000 square foot lots. As required by Sections 109(a) and (b) of Ordinance No. 106, Doran submitted its plan for review and study by the township planning commission and the Berks County planning commission, both of which recommended that tentative approval be granted subject to certain conditions. After public hearings at which numerous residents appeared and vigorously objected to the approval of the proposed development, the board of township commissioners refused tentative approval. Doran appealed to the Court of Common Pleas of Berks County which concluded that the board had not made sufficient findings

[ 10 Pa. Commw. Page 147]

    of fact as required by Section 709 of the MPC, 53 P.S. § 10709, and remanded the record for this purpose. The board, without receiving additional evidence, made an amended decision, with additional findings, again denying tentative approval. On appeal the court below affirmed the commissioners and Doran appeals here.

The commissioners disapproved the plan for the expressed reasons that it was inconsistent with the township's comprehensive plan, that it was not in compliance with requirements of the township zoning ordinance, and for additional reasons, including its asserted lack of provision for anticipated traffic congestion and hazards and protection of the "visual enjoyment" of adjacent property owners, its alleged encroachment on land proposed by township planners for future school use, and because it would create "an island . . . of development substantially different in character and visible appearance from the surrounding residential area."

The court below correctly determined that, not having taken additional testimony, its duty was to determine whether the board of commissioners abused their discretion or committed an error of law. Brauns v. Swarthmore Borough, 4 Pa. Commonwealth Ct. 627, 288 A.2d 830 (1972); DeFeo et al. v. Brookhaven Borough, 3 Pa. Commonwealth Ct. 377, 283 A.2d 505 (1971). Ours is the same duty.

Doran contends that its plan complies with all of the requirements of Ordinance No. 106 and that it is entitled to have its plan tentatively approved.

The Legislature enacted Article VII of the MPC, 53 P.S. § 10701 et seq., to encourage "innovations in residential development and renewal so that the growing demand for housing [in Pennsylvania] may be met by greater variety in type, design and layout of dwellings and by the conservation and more efficient use of open space." MPC § 701, 53 P.S. § 10701. In enacting

[ 10 Pa. Commw. Page 148]

    the ordinance authorized by Article VII, municipal governing bodies are to fix "standards and conditions for planned residential development." MPC § 702, 53 P.S. § 10702. Ordinance No. 106 of Muhlenberg Township was adopted for these purposes and fixed standards and conditions.

[ 10 Pa. Commw. Page 149]

Article VII of the MPC also outlines a comprehensive scheme whereby a developer may obtain approval of a proposed planned residential development from the local governing body.*fn1 As we said in Abel v. Township Page 149} of Middletown, 7 Pa. Commonwealth Ct. 6, 297 A.2d 525 (1972), it envisions a two-step procedure. The first step is the one taken by the appellant here, an "[a]pplication for tentative approval" pursuant to Section 707 of the MPC, 53 P.S. § 10707. Public hearings on the application for tentative approval are required by Section 708, 53 P.S. § 10708. Findings must be made pursuant to Section 709, 53 P.S. § 10709, which reads:

"(a) The governing body within thirty days following the conclusion of the public hearing provided for in this article, shall, by official written communication, to the landowner, either:

"(1) Grant tentative approval of the development plan as submitted;

"(2) Grant tentative approval subject to specified conditions not included in the ...

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