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CLYDE W. HORST v. DERRY TOWNSHIP BOARD SUPERVISORS (11/10/75)

decided: November 10, 1975.

CLYDE W. HORST, ABRAM S. HORST, JR. AND ELVA B. WILSON, T/D/B/A CLABELL COMPANY, APPELLANTS,
v.
DERRY TOWNSHIP BOARD OF SUPERVISORS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Clyde W. Horst, Abram S. Horst, Jr. and Elva B. Wilson, trading and doing business as Clabell Company v. Derry Township Board of Supervisors, No. 919 June Term, 1973.

COUNSEL

Rod J. Pera, with him William M. Young, Jr., McNees, Wallace & Nurick, John O. Shirk and Barley, Snyder, Cooper & Mueller, for appellants.

Jerome T. Foerster, with him Cleckner and Fearen, for appellee.

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

Author: Wilkinson

[ 21 Pa. Commw. Page 557]

Appellants are owners of a tract of land in Derry Township, Dauphin County, Pennsylvania, on which they wish to develop a condominium complex. On April 16, 1973, appellants submitted to the Derry Township Planning Commission a subdivision plan for their proposed development. Although the Planning Commission recommended approval, on June 11, 1973, the Township supervisors denied appellants' application.

In a letter dated June 14, 1973, the supervisors wrote to appellants:

"The majority of the board, although they accept the fact that your plans meet direct requirements of our zoning ordinance, exercised discretionary powers for the good of the Township, and denied your application because they doubt that existing power and light, water and fire protection services are adequate to withstand the impact of so many dwelling units coming into being at the same time.

"It is fair to say, also, that the majority of the Supervisors are not in favor of this condominium proposal because the high density, high rise ideas do not meet their concept of what is best for Derry Township."

Pursuant to an order of the Court of Common Pleas of Dauphin County, this case was remanded for the preparation of a record. A public hearing was held on August 6, 1974. At the hearing, appellants produced evidence from the local electric company and the water company stating sufficient capacity existed to handle the proposed development. On appeal, the Common Pleas Court affirmed the denial.

As the court below took no additional testimony and did not receive additional evidence, the scope of review by this Court is limited to whether the supervisors abused their discretion or committed an error of law. Doran Investments v. Muhlenberg Township Board of Commissioners,

[ 21 Pa. Commw. Page 55810]

Pa. Commonwealth Ct. 143, 309 A.2d 450 (1973); Brauns v. Swarthmore Borough, 4 Pa. Commonwealth Ct. ...


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