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GEORGE CALANTONI & SONS v. FORKS TOWNSHIP (05/02/75)

decided: May 2, 1975.

GEORGE CALANTONI & SONS, INC., APPELLEE,
v.
FORKS TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Northampton County in case of George Calantoni & Sons, Inc. v. Forks Township, No. 539 October Term, 1972. Transferred from the Supreme Court of Pennsylvania to the Commonwealth Court of Pennsylvania, December 26, 1974.

COUNSEL

Stanley E. Stettz, with him Teel, Stettz, Shimer & DiGiacomo, for appellant.

Carl K. Zucker, with him Leonard M. Cohn, Anthony S. Blasco, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 18 Pa. Commw. Page 632]

The appellee, George Calantoni & Sons, Inc. (Calantoni), has been attempting to obtain approval of a Planned Residential Development (PRD) on approximately 31 acres of land which it owns in Forks Township, Northampton County, for five years.

In 1971 the Township Planning Commission recommended tentative approval of a preliminary plan filed by Calantoni, conditioned upon a decision by the Board of Supervisors and the township solicitor as to the propriety of the method used by Calantoni in determining the necessary floor ratio area. When the plan reached the Board of Supervisors, the township solicitor decided that a planned residential development was not a permitted use in the zoning district where Calantoni's tract was located. Calantoni appealed the Board of Supervisors' disapproval of the plan on this ground to the Northampton County Court of Common Pleas which held that the proposed use was permitted. The township appealed that decision to the Commonwealth Court. We affirmed the lower court's determination. George Calantoni & Sons, Inc. v. Board of Supervisors, 6 Pa. Commonwealth Ct. 521, 297 A.2d 164 (1972). Judge Kramer noted at the conclusion of the opinion written for the court that the sole remaining issue in the case seemed to be that of the floor area ratio required by the zoning

[ 18 Pa. Commw. Page 633]

    ordinance and suggested that when this was resolved Calantoni would be entitled to a building permit.

Calantoni revised its plan to conform with the township's view of the allowed floor area ratio and resubmitted it to the township together with a request for a building permit. The Township Planning Commission recommended tentative approval of the plan but the Board of Supervisors deferred immediate action. Calantoni then instituted an action of mandamus seeking an order directing the supervisors to approve the plan and issue a building permit and moved for summary judgment. The court below remanded the matter to the Township Planning Commission with direction to grant tentative approval and further ordered the Board of Supervisors to issue a building permit, subject to compliance by Calantoni with all provisions of the zoning ordinance. The Board of Supervisors next published a written report purporting to show noncompliance of the plan with various provisions of the township zoning ordinance. Calantoni thereupon filed a motion for a rule to show cause why an attachment for contempt should not issue against the township supervisors. After motions for judgment on the pleadings were filed by both parties, the court below discharged the rule to show cause, directed the Board of Supervisors to bring the entire record to the court and announced the court's intention to treat the matter as a zoning appeal. By amended order, the court directed that a zoning appeal be filed by Calantoni. The court's order was appealed by the township to us. We quashed the appeal as interlocutory. Forks Township v. George Calantoni & Sons, Inc., 14 Pa. Commonwealth Ct. 589, 324 A.2d 861 (1974). Judge Wilkinson, writing for this court, specifically approved the action of the lower court in treating the rule for attachment as a zoning appeal and noted that this afforded the township an opportunity to augment the record to justify its refusal to issue the building permit. The township made no application to augment the record as we suggested.

[ 18 Pa. Commw. Page 634]

The court below, after conferring at length with counsel and examining the record, entered its order directing the issuance of a permit for the construction of the planned residential development in accordance with the revised plan. Forks Township appealed to the Supreme ...


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