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NESHAMINY PLAZA II v. STEPHEN J. KELLY (10/30/75)

decided: October 30, 1975.

NESHAMINY PLAZA II, A JOINT VENTURE
v.
STEPHEN J. KELLY, SUPERVISOR, BENSALEM TOWNSHIP. STEPHEN J. KELLY, APPELLANT. NESHAMINY PLAZA II, A JOINT VENTURE V. STEPHEN J. KELLY, SUPERVISOR, BENSALEM TOWNSHIP. NESHAMINY PLAZA II, APPELLANT



Appeals from the orders of the Court of Common Pleas of Bucks County in case of Neshaminy Plaza II, a joint venture v. Stephen J. Kelly, Supervisor, Bensalem Township, No. 74-10119-04-6.

COUNSEL

Jan Z. Krasnowiecki, with him Arsen Kashkashian, Jr., for Neshaminy Plaza II.

Emil F. Toften, with him Henry F. Huhn, for Stephen J. Kelley.

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

Author: Rogers

[ 21 Pa. Commw. Page 470]

There are before us two appeals consolidated for argument and disposition: the first, that of Stephen J. Kelly, a Supervisor of Bensalem Township, from an order of the Court of Common Pleas of Bucks County requiring him to post bond as a condition to continuing a proceedings before the Zoning Hearing Board of Bensalem Township; the second, that of Neshaminy Plaza II (Neshaminy) from an order of the same court dismissing a contempt citation against Kelly and two members of the Township Zoning Hearing Board.

The facts, briefly, are that Neshaminy on October 16, 1973 received the Township's permit to construct an office building pursuant to plans approved by the Township's planning and zoning authorities. The building was completed in or about September 1974, and Neshaminy then applied for and obtained from the Township a Certificate of Occupancy and Compliance founded on the

[ 21 Pa. Commw. Page 471]

    approvals of the structure as conforming to Township requirements by the Township building, plumbing and zoning officers. Kelly filed with the Zoning Hearing Board a "Challenge to the Decision of the Zoning Officer" averring that "the Development was and is in violation of the Township Zoning Ordinance." The challenge (or appeal) was subscribed by Kelly as a Township Supervisor.*fn1 Neshaminy thereupon filed a petition for an order requiring Kelly to post bond. The court by order fixed a hearing date and ordered a stay of proceedings. After hearing, the court directed Kelly initially to post bond of $5539.20 and thereafter during the pendency of the proceedings before the Zoning Hearing Board to post bond in the amount of $3462 each month.*fn2

Section 916 of the MPC, 53 P.S. § 10916, pursuant to which Neshaminy petitioned for bond, reads:

"Upon filing of any proceeding referred to in Section 914 and during its pendency before the board all land development pursuant to any challenged ordinance, order or approval of the zoning officer or of any agency or body, and all official action thereunder shall be stayed unless the zoning officer or any other appropriate agency or body certifies to the board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the board or by the court having jurisdiction of zoning appeals on petition after notice to the zoning officer or other appropriate agency or body. When an application for development, preliminary or final, has

[ 21 Pa. Commw. Page 472]

    been duly approved and proceedings designed to reverse or limit the approval are filed with the board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the board. The question whether or not such petition ...


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