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SIDNEY COHEN v. JOHN J. FORD (06/03/75)

decided: June 3, 1975.

SIDNEY COHEN, APPELLANT,
v.
JOHN J. FORD, MEADE E. GREEN, JR., ROBERT C. GWIN, CARL R. BRICKER AND N. RAY FISHER, CONSTITUTING THE TOWNSHIP COMMISSIONERS OF THE TOWNSHIP OF HAMPDEN, CUMBERLAND COUNTY, PA. AND TOWNSHIP OF HAMPDEN PLANNING COMMISSION AND CHARLES KEMBERLING, TOWNSHIP MANAGER AND ZONING OFFICER AND JOSEPH R. FLOOD, ET AL., INTERVENORS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Cumberland County in case of Sidney Cohen v. John J. Ford, Meade E. Green, Jr., Robert C. Gwin, Carl R. Bricker and N. Ray Fisher, constituting the Township Commissioners of the Township of Hampden, Cumberland County, Pa. and Township of Hampden Planning Commission and Charles Kemberling, Township Manager and Zoning Officer and Joseph R. Flood, et al., No. 113 September Term, 1973.

COUNSEL

Lenard L. Wolffe, with him Stanley A. Uhr, Marc D. Brookman, Pechner, Sacks, Dorfman, Rosen & Richardson, John B. Mancke and Meyers & Desfor, for appellant.

Robert D. Myers, with him Myers & Potteiger, for appellees.

Jerome T. Foerster, with him Richard W. Cleckner and Cleckner and Fearen, for intervening appellees.

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

Author: Crumlish

[ 19 Pa. Commw. Page 419]

This is an appeal by a landowner from an order of the Court of Common Pleas of Cumberland County which denied, after a jury trial, a writ of mandamus to compel Hampden Township to issue zoning and building permits for a townhouse development proposed by Appellant which use is permitted as a conditional use in an R-1 residential zone of Hampden Township. The lower court ordered approval of Appellant's final subdivision plan as submitted, but refused to order the issuance of building permits because the procedure to be followed to obtain conditional approval under the applicable ordinance was inconsistent with Section 603 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10603 (MPC), and therefore any zoning approval obtained thereunder was invalid.

Because of the relative complexity of the procedural history of this appeal, an extensive recapitulation of the facts is necessary to frame the legal issues presented. Appellant, Sidney Cohen, is the owner of a tract of land in Hampden Township known as "Penn's Grant" which was zoned at the time pertinent to this case "R-1 Residential" under the Hampden Township Zoning Ordinance (Ordinance No. 72). Section 302 of this ordinance permitted multiple family dwellings including apartments and townhouses as a conditional use in an R-1 district

[ 19 Pa. Commw. Page 420]

    subject to the review and approval of the Hampden Township Planning Commission. On July 18, 1972, Appellant submitted a preliminary plan for subdivision approval of a development of approximately 183 townhouse units within Penn's Grant. On August 17, 1972, the Planning Commission voted unanimously to approve the preliminary plan submitted by Appellant subject to seven conditions relating to site improvements and bonding to be included within the final plan submission. Upon learning of this action and without prior notice to Appellant, however, the Hampden Township Board of Commissioners adopted a "consensus" motion on September 5, 1972, rejecting his subdivision plan and application for conditional use. Appellant was notified of this decision by a letter dated September 6, 1972. He, nevertheless, proceeded to submit final subdivision plans to the Planning Commission on September 28, 1972, together with letters and other materials purporting to comply with the conditions enumerated in the Planning Commission's preliminary approval.

[ 19 Pa. Commw. Page 421]

Perhaps sensing the futility of further proceedings before the Township authorities in view of the Board of Commissioners' decision, Appellant instituted a complaint in mandamus, on March 5, 1972, against Hampden Township and the respective members of the Board of Commissioners and Planning Commission to compel final subdivision approval and the issuance of building permits based upon the final developmental plans submitted to the Planning Commission. Although the court ruled that the Board of Commissioners was without power to revoke the Planning Commission's preliminary approval of Appellant's subdivision plans under the ordinance, the complaint was dismissed as premature because it was filed within the sixty day deliberative period which the Planning Commission had been given to act upon a final subdivision plan under section 404-5 of the Township's Subdivision Ordinance (Ordinance No. 14). Cohen v. Page 421} Township of Hampden Planning Commission, 23 Cumb. L.J. 127 (1973). No appeal was taken from this decision.

Appellant thereafter resubmitted his final plans and accompanying material to the Planning Commission which disapproved his "application for conditional use permit and building permit" on April 26, 1973. Although Appellant and his counsel attended the meeting at which this action was taken, no written communication of the decision was ever sent to him. Appellant then instituted the instant mandamus action. Joseph R. and Barbara A. Flood and John J. and Suzanne J. Donatucci (Intervening Appellees herein) intervened in this action as of June 21, 1973. In the ensuing trial, the jury answered 23 special interrogatories based upon stipulations submitted by the parties and the oral evidence adduced. The jury found that Appellant had fulfilled each of the seven conditions established by the Planning Commission for final approval of the development plan, and had either complied with the technical requirements of the subdivision ordinance or these requirements had been waived by the Planning Commission. Based upon these findings and its prior opinion in Cohen v. Township of Hampden Planning Commission, supra, the lower court ordered approval and execution of Appellant's final subdivision plan since more than sixty days had elapsed without decision since its submission. As an alternative ground on this point, the Court held that even if the Planning Commission's April 26, 1973, decision was intended as a disapproval of the subdivision plan, no written communication of that decision was sent to ...


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