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DEPAUL REALTY COMPANY v. BOROUGH QUAKERTOWN (08/14/74)

decided: August 14, 1974.

DEPAUL REALTY COMPANY, APPELLANT,
v.
BOROUGH OF QUAKERTOWN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of DePaul Realty Company v. The Borough of Quakertown, No. 73-6605-03-6.

COUNSEL

C. William Freed, Jr., with him Freed and Bahls, for appellant.

Rodney D. Henry, for appellee.

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

Author: Kramer

[ 15 Pa. Commw. Page 18]

This is an appeal filed by DePaul Realty Company (DePaul) from an order of the Court of Common Pleas of Bucks County dated December 13, 1973, denying a motion by DePaul to vacate a prior order of the same court dated September 24, 1973, wherein the court remanded the matter to the Borough Council of the Borough of Quakertown (Borough) for a hearing. The hearing was to be restricted to receiving evidence on the question of whether the approval of a subdivision plan submitted by DePaul (the Borough had already denied the plan) "would adversely affect the safety and welfare of the community."

This case had its beginning when, on February 12, 1973, DePaul filed an application for approval of a subdivision and land development plan incidental to a proposal to construct 31 town houses in an R-4 zoned district of the Borough. Town house usage is permitted under the Borough's zoning ordinance upon obtaining a special exception. On February 19, 1973, DePaul applied for such a special exception, and also a variance for certain off-street parking under the proposed plan. On April 9, 1973, the special exception was allowed by the Borough's Zoning Hearing Board, but the variance was denied. No appeal was taken from this determination.

On March 5, 1973, the Borough's Planning Commission independently recommended changes in the parking plan. As a result of the denial of the parking variance, and the Planning Commission's recommendations, DePaul, on April 11, 1973, submitted a "revised preliminary plot plan for the subject tract showing all parking spaces conforming to Section 26.01(B)(2) of the zoning ordinance." Thereafter, on April 16, 1973, the Planning Commission met again to consider the revised plan. Final consideration by the Planning Commission, however, was postponed until May 14,

[ 15 Pa. Commw. Page 191973]

, at which meeting the Commission moved to reject the application at an executive session, which rejection was later confirmed by action of the Commission at a regular meeting on May 21, 1973. DePaul was notified of this rejection on May 24, 1973.

On June 6, 1973, at a regular meeting of the Borough Council, the revised plan submitted on April 11, 1973, was scheduled to be disapproved by resolution. At this meeting, it was orally agreed by counsel for DePaul to extend the time for Borough action on its decision until the July meeting of the Borough Council. Confirmation of this extension, however, was never reduced to writing by counsel for DePaul. At the July 5, 1973 meeting of the Borough Council, a resolution, with the required reasons, was passed disapproving DePaul's revised preliminary plan.

On July 19, 1973, DePaul appealed to the court below. A conference was held pursuant to the local court rules on September 11, 1973, and thereafter on September 24, 1973, without receiving any additional testimony or evidence, the lower court issued its order remanding the matter to the Borough Council for the hearing described above. As already stated, on December 13, 1973, after the filing of exceptions and a motion to vacate the order by DePaul, the court below denied same, and the matter was appealed to this Court.

In its appeal to this Court, DePaul argues that since the Borough did not approve the subdivision preliminary plan within 90 days of the original filing on February 12, 1973, DePaul is entitled to a final order approving the plan as filed, pursuant to provisions of the Pennsylvania Municipalities Planning Code (M.P.C.), Act of July 31, 1968, P.L. 805, § 508, as amended, 53 P.S. § 10508. ...


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