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BOARD COMMISSIONERS TOWNSHIP O'HARA v. ELIAS J. HAKIM (06/16/75)

decided: June 16, 1975.

BOARD OF COMMISSIONERS OF THE TOWNSHIP OF O'HARA, APPELLANT,
v.
ELIAS J. HAKIM, JR., TRADING AND DOING BUSINESS AS MANOR INVESTMENT COMPANY



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Appeal of: Elias J. Hakim, Jr., trading and doing business as Manor Investment Company from the Decision of the Board of Commissioners of the Township of O'Hara, No. SA 159 of 1974.

COUNSEL

Philip Huss, Jr., with him Maxwell and Huss, for appellant.

David W. Craig, with him Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellee.

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

Author: Wilkinson

[ 19 Pa. Commw. Page 663]

This case concerns a planned unit development (P.U.D.) ordinance enacted by O'Hara Township in accordance with Article VII of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10701 et seq.

Appellee is the owner of a tract of land in O'Hara Township, Allegheny County, upon which he desires to build two ten-story high rise apartment buildings, providing a total of 294 apartments. The tract consists of two parcels of ground: parcel No. 1, being 2.949 acres fronting on the east side of East Oak Hill Road; parcel No. 2, being 14.566 acres opposite parcel No. 1 on the other side of East Oak Hill Road and bounded on the west by Fox Chapel Road.

On November 28, 1973, appellee submitted plans and an application for tentative approval of a planned unit development to the O'Hara Township Planning Commission which recommended to appellant that tentative approval be granted subject to seven conditions. On February 11, 1974, pursuant to Section 708 of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10708, a public hearing was held. This meeting was heavily attended by area residents who strongly opposed the tentative approval of the P.U.D.*fn1 On March 5, 1974,

[ 19 Pa. Commw. Page 664]

    appellant, in a unanimous written opinion, denied tentative approval.

Appellee appealed this denial to the Allegheny County Court of Common Pleas which, on October 15, 1974, sustained the appeal and ordered appellant to grant tentative approval to the proposed P.U.D. subject only to the conditions previously imposed by the planning commission. Appellant has appealed to us.

The court below took extensive additional evidence including numerous exhibits, over 500 pages of testimony, and a view of the property, and, therefore, was not limited merely to a review of whether appellant abused its discretion or committed an error of law, but rather, properly made its own findings of fact and conclusions of law. Garbev Zoning Case, 385 Pa. 328, 122 A.2d 682 (1956); Pantry Quik, Inc. v. Zoning Board of Adjustment of the City of Hazleton, 1 Pa. Commonwealth Ct. 326, 274 A.2d 571 (1971). Our duty is now to review the action of the lower court for abuse of discretion or error of law.

We find that the court below did commit error and although we must reverse, we note that that court's opinion by Judge Silvestri contains an excellent discussion and analysis of the history and purposes of Article VII of the Pennsylvania Municipalities Planning Code. We further note that our brother Judge Roger's opinion in Doran Investments v. Muhlenberg Township Board of Commissioners, 10 Pa. Commonwealth Ct. 143, 309 A.2d 450 ...


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