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JOHN E. RUSSELL v. PENN TOWNSHIP PLANNING COMMISSION AND PENN TOWNSHIP SUPERVISORS (12/05/75)

decided: December 5, 1975.

JOHN E. RUSSELL, APPELLANT
v.
PENN TOWNSHIP PLANNING COMMISSION AND PENN TOWNSHIP SUPERVISORS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Butler County in case of John E. Russell v. Penn Township Planning Commission and Penn Township Supervisors, No. 3 June Term, 1970.

COUNSEL

Leo M. Stepanian, with him Brydon & Stepanian, for appellant.

Norman D. Jaffe, with him Lee A. Montgomery, and Galbreath, Braham, Gregg, Kirkpatrick, Jaffe & Montgomery, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Mencer. Judge Kramer joins in this dissent.

Author: Wilkinson

[ 22 Pa. Commw. Page 199]

In May of 1969, appellant purchased 122 acres of land in Penn Township, Butler County, (Township) for the purposes of constructing a mobile home park. The Township Zoning Ordinance (Ordinance) permits mobile home parks as a conditional use, upon satisfaction of specific conditions, on any land in the Township. At the time appellant purchased the land, the Ordinance required 3,500 square feet of land and one (1) parking space for mobile home lots. After the purchase, but prior to appellant's conditional use application, the Ordinance was amended to require 15,000 square feet of land and two (2) automobile parking spaces per mobile home lot.

The procedural history of this case is long and involved. See Russell v. Penn Township Planning Commission, 8 Pa. Commonwealth Ct. 429, 302 A.2d 870 (1973). In the instant case, this controversy takes the form of an appeal from an order of the Butler County Court of Common

[ 22 Pa. Commw. Page 200]

Pleas denying and dismissing an appeal from the Township's planning commission rejecting appellant's application for a conditional use.

Appellant urges three reasons to reverse. First, he argues that the Ordinance allows case by case zoning which is invalid and constitutionally infirm as flexible selective zoning and not in accordance with a comprehensive plan. Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A.2d 7 (1960). In Eves, it is recognized that a case by case determination is permitted, but only by the specialized township boards of adjustment. 401 Pa. at 219, 164 A.2d at 12. This has been altered by Section 603 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10603, (PMPC), which now provides, in part:

"[Z]oning ordinances may contain:

"(2) provisions for conditional uses to be allowed or denied by the governing body after recommendations by the planning agency, pursuant to express standards and criteria set forth in the ordinance. . . ."

Further, the cases which have followed Eves have eliminated the comprehensive plan mandate and permitted zoning modification on the application of the landowner. See Village 2 at New Hope, Inc. Appeal, 429 Pa. 626, 241 A.2d 81 (1968); Marino v. Zoning Hearing Board of Harrison Twp., 1 Pa. Commonwealth Ct. 116, 274 A.2d 221 ...


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