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TOWNSHIP MIDDLETOWN v. GWEN D. ABEL AND GEORGE G. ABEL (06/16/75)

decided: June 16, 1975.

TOWNSHIP OF MIDDLETOWN, APPELLANT,
v.
GWEN D. ABEL AND GEORGE G. ABEL, III, APPELLEES. GWEN D. ABEL AND GEORGE G. ABEL, III, APPELLEES, V. TOWNSHIP OF MIDDLETOWN, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Gwen D. Abel and George G. Abel, III, v. Township of Middletown, No. 249 of 1971.

COUNSEL

John W. Nilon, Jr., with him Rodger L. Mutzel, and Kassab, Cherry and Archbold, for appellant.

John W. Wellman, with him Francis T. Sbandi, and Fronefield, deFuria & Petrikin, for appellees.

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

Author: Kramer

[ 19 Pa. Commw. Page 652]

This opinion involves two separate appeals filed by the Township of Middletown (Township) from two orders of the Court of Common Pleas of Delaware County which will be described hereinafter. These are the third and fourth appeals taken by the Township from orders of the court below in this very complicated case involving protracted proceedings over the past four and a half

[ 19 Pa. Commw. Page 653]

    years. In view of the complicated procedural history of this case, it will be helpful to present a chronology of the events in an itemized format so that the result of this case will be completely understood.

1. During all times pertinent to this matter Gwen D. Abel and George G. Abel, III (hereinafter collectively referred to as the Abels) owned 80.06 acres of land situated in the Township.

2. On August 10, 1970, pursuant to the enabling provisions of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10101 et seq., the Township adopted ordinance No. 136 (later amended by ordinance No. 139) providing for planned residential developments (PRD's) within the Township. In addition to the usual provisions relating to PRD's, the ordinance required prior approval of a Land Use Plan before the presentation of an application for preliminary approval of a PRD.

3. On October 12, 1970, the Abels informally discussed with the Board of Supervisors of the Township their intent to develop their tract of land as a PRD. On November 10, 1970, they again appeared before the Board regarding their proposal. Without a hearing, the Board, by letter dated December 10, 1970, informed the Abels that, on December 2, 1970, their request for approval of their Land Use Plan, submitted under the Township's ordinance No. 136, had been denied.

4. On January 8, 1971, the Abels filed a zoning appeal with the court below. The court held, on April 13, 1971, that the Abels had a right to have the Board of Supervisors' decision reviewed by the court, but, because there was no record to review, the court remanded the matter to the Board of Supervisors for an evidentiary hearing. In June of 1971 the Board of Supervisors held a hearing at which extensive testimony and evidence were presented by the Abels in support of their Land Use Plan. After the hearing the Abels received an undated

[ 19 Pa. Commw. Page 654]

    decision of the Board of Supervisors which again denied approval of the Land Use Plan. The denial stated that the Abels' plan was not in harmony with what had been planned for the area involved.

5. This adjudication was again appealed to the court below and, in an opinion dated February 14, 1972, the court held that the Abels had satisfied all the requirements set forth in the ordinance for approval of a Land Use Plan and that the Township had arbitrarily and capriciously denied approval.

6. On March 9, 1972, the Township appealed to this Court (its first appeal) and, in an opinion dated December 4, 1972, we affirmed the order of the court below and struck down the three-step procedure of the ordinance as an unauthorized expansion of power under the MPC. See Abel ...


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