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A. P. ORLEANS MARVIN ORLEANS BERNARD FLITTER PHILIP F. NEWMAN BERNARD FLITTER AND LEONARD CAPLAN v. MELROSE PARK IMPROVEMENT ASSOCIATION (03/31/75)

decided: March 31, 1975.

A. P. ORLEANS; MARVIN ORLEANS; BERNARD FLITTER; PHILIP F. NEWMAN; BERNARD FLITTER AND LEONARD CAPLAN, EXECUTORS OF THE ESTATE OF MORRIS CAPLAN; AND SYLVIA S. TOLL,
v.
THE MELROSE PARK IMPROVEMENT ASSOCIATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of A. P. Orleans; Marvin Orleans; Bernard Flitter; Philip F. Newman; Bernard Flitter and Leonard Caplan, Executors of the Estate of Morris Caplan; and Sylvia S. Toll v. The Melrose Park Improvement Association, No. 74-13237.

COUNSEL

Herbert D. Rossman, for appellant.

Morris Gerber, with him Marc D. Jonas, and Gerber, Davenport & Wilenzik, for appellees.

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

Author: Bowman

[ 18 Pa. Commw. Page 187]

Is section 916 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, 53 P.S. ยง 10916, governing petitions for the posting of a bond as a condition of continuing a zoning appeal, available to a land developer who has not applied for approval of a preliminary or final development plan, but who has obtained a preliminary approval by a zoning officer, which approval is the subject of an appeal to a zoning board?

This is the primary issue raised in this appeal. Appellant also questions the constitutionality of section 916, but recognizes that this Court recently considered this subject and found the statutory provisions not to be violative of the constitutional issues appellant here raises. Driscoll v. Plymouth Township, 13 Pa. Commonwealth Ct. 404, 320 A.2d 444 (1974).*fn1

Section 916 of the Code provides as follows:

"Upon filing of any proceeding referred to in section 914 and during its pendency before the board all land development pursuant to any challenged ordinance, order or approval of the zoning officer or of any agency or body, and all official action thereunder shall be stayed unless the zoning officer or any other appropriate agency or body certifies to the board facts indicating that such stay would cause imminent peril

[ 18 Pa. Commw. Page 188]

    to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the board or by the court having jurisdiction of zoning appeals on petition after notice to the zoning officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the board. The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court." (Footnote omitted.)

Pursuant to this section, appellees here petitioned the Court of Common Pleas of Montgomery County to require appellant to post such a bond. After hearing, a bond was ordered to be posted within five (5) days in the amount of $200,000.00, with an additional $50,000.00 bond one month thereafter and with the same additional amounts each succeeding month. This order was dated October 4, 1974. Upon failure of appellant to comply, by order dated October 16, 1974, the court dismissed appellant's challenge to the Zoning Hearing Board. This appeal followed from both of said orders.

Appellant contends that a literal reading of the language of section 916 limits the availability of the bond posting provisions as set forth in the last two sentences of the section to only those instances in which the developer is confronted with an appeal from an approval of a preliminary or final development plan. By comparing this language with the language contained in the first sentence of section 916, staying all land ...


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