Appeal from the Orders of the Court of Common Pleas of Montgomery County in cases of Commonwealth of Pennsylvania v. Abington Township Zoning Hearing Board and Larwin Multihousing Pennsylvania Corporation, Owner, Intervenor, No. 72-12524; and Appeal of Pennypack Watershed Association from Decision of Abington Township Zoning Hearing Board, Larwin Multihousing Pennsylvania Corporation, Owner, Intervenor, No. 72-12526.
Carl K. Zucker, with him Reuben E. Cohen, and Cohen, Shapiro, Polisher, Shiekman & Cohen, for appellant.
Dennis M. Coyne, Assistant Attorney General, with him Robert J. Shusterman, Assistant Attorney General, for appellee, Commonwealth.
Robert J. Sugarman, with him John E. Flaherty, Jr., and, of counsel, Dechert, Price & Rhoads, for appellee, Pennypack.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
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Larwin Multihousing Pennsylvania Corporation (Larwin) has appealed from orders of the Court of Common Pleas of Montgomery County, sustaining the appeals of the Commonwealth of Pennsylvania and of the Pennypack Watershed Association from an order of the Zoning
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Hearing Board of Abington Township favorable to Larwin's desire to build apartments in Abington Township.
The history of this case in respect of its length, complexity and final confusion is not dissimilar to that which often, if not usually, attends the efforts of developers to obtain permits to build multifamily housing. Such cases evidence the fact that the battleground between those who would build apartments and those who would resist their construction has shifted from the heights of constitutional debate, lost by the latter in Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), to the beachheads of local administrative procedures. This case also illustrates the importance to persons engaging in zoning litigation of careful attention and adherence to the comprehensive procedural provisions of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101 et seq.
Certain aspects of this case are, however, unusual. One of Larwin's remaining adversaries is the Commonwealth of Pennsylvania, acting here by its Department of Environmental Resources; although the Commonwealth, acting by other departments, has repeatedly inveighed against the asserted failure of municipal zoning regulations to provide sufficiently for multifamily residential uses. See e.g., Upper St. Clair Township v. Commonwealth, 13 Pa. Commonwealth Ct. 71, 317 A.2d 906 (1974); Commonwealth v. Bucks County, 8 Pa. Commonwealth Ct. 295, 302 A.2d 897 (1974).*fn1 Conceding the
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desirability of the State's engaging in "public interest" litigation, we may nevertheless entertain the hopeful expectation that the departments and agencies of State government will select for espousal a common favorite from among the conflicting views of the public interest which seem to arise on most issues.
This case is unusual also because it is not the municipality, spurred by objecting residents, which opposes Larwin's proposed development but, in addition to the Commonwealth, a nonprofit corporation organized, as one of its pleadings reveals, "to promote the enjoyment, restoration, conservation, protection and prudent management of the Pennsylvania Creek Watershed . . ., a land area ultimately drained by the Pennypack Creek and its tributaries extending from its source near Maple Glen in Montgomery County to the confluence of the Pennypack with the Delaware River at Philadelphia, which area encompasses parts of Montgomery, Bucks and Philadelphia Counties."
Further, the objectors do not assert that Larwin's plans violate any substantive provision of the Abington Township Zoning Ordinance, any other township regulation, any Act of the General Assembly or any regulation of the Department of Environmental Resources. Their contention is that, despite the conformity of Larwin's plans with all existing requirement of statutory law, the apartment development should be prevented or, in the alternative, ...