Appeals from the Order of the Court of Common Pleas of Chester County in case of Edward J. Walsh, Jr., and William J. Curley, Jr., v. Board of Supervisors of Willistown Township, No. 179 May Term, 1973.
Robert J. Shenkin, with him John O. Platt, Jr., and MacElree, Platt, Harvey & Gallagher, Ltd., for appellant.
Thomas A. Riley, Jr., with him John C. Snyder and Lentz, Riley, Cantor, Kilgore & Massey, Ltd., for intervening appellants.
John P. Trevaskis, Jr., with him Holbrook M. Bunting, Jr., and Trevaskis, Doyle, Currie, Nolan and Bunting, and, of counsel, Jan Krasnowiecki, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion of Judge Crumlish, Jr. Judge Rogers concurs in the result.
[ 20 Pa. Commw. Page 276]
The Board of Supervisors of Willistown Township (Board of Supervisors) has appealed an order of the Court of Common Pleas of Chester County which directed the issuance of building permits to Edward J. Walsh, Jr. and William J. Curley (Walsh and Curley) to construct multi-family dwellings after they file appropriate plans.
As is so often the case in zoning appeals, the factual posture is complex and so we believe it to be appropriate to recite the sequence.
Walsh and Curley are the owners of 65.6 acres in Willistown Township, Chester County, on the north side of U.S. Route 202, east of Township Line Road. The property was purchased on August 11, 1967, and since
[ 20 Pa. Commw. Page 277]
then has at all times been located within an RA residential district. The district provides for single family detached homes on minimum two acre lots.
Application for building permits was made by Walsh and Curley on June 27, 1968. The envisioned subdivision provided for twenty-six lots which constituted the maximum permissible by the ordinance. On October 17, 1968, the developers were informed by the County Health Department that approximately 70% of the lots were, or could be, unsuitable because of sewage disposal problems in the area. Walsh and Curley in April of 1969 then engaged an engineer who concluded that the twenty-six homes allowable, alone, could not support the cost of a sewage treatment facility. Further, the record reveals that the Supervisors do not now, nor in the foreseeable future, contemplate construction of a treatment facility in the area. The developers then engaged another civil engineer whose opinion suggested that a variety of residential housing, in combination with open space, would support the necessary treatment facility.*fn1
By letter on March 23, 1970, Walsh and Curley submitted to the Board of Supervisors a plan reflective of that proposed by their engineer, together with a proposed amendment to the Township zoning ordinance which would create a district to meet their proposal. Pursuant to Sections 801 and 802 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, §§ 801, 802, as amended, 53 P.S. §§ 10801, 10802, Walsh and Curley intended this application to be ...