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DEVONSHIRE REALTY CORPORATION v. TOWNSHIP MAXATAWNY (01/08/76)

decided: January 8, 1976.

DEVONSHIRE REALTY CORPORATION, APPELLANT
v.
TOWNSHIP OF MAXATAWNY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Berks County in case of Devonshire Realty Corporation v. Township of Maxatawny, No. 284 May Term, 1974 and No. 41 August Term, 1974.

COUNSEL

Malcolm J. Gross, with him Gross & Brown, for appellant.

Forrest G. Schaeffer, Jr., with him Edelman, Schaeffer, Saylor, Readlinger & Poore, for appellee.

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

Author: Rogers

[ 22 Pa. Commw. Page 556]

Devonshire Realty Corporation, a land developer, has appealed from an order of the Court of Common Pleas of Berks County upholding the disapproval by the Supervisors of Maxatawny Township of Devonshire's final plan of subdivision.

There was never an evidentiary hearing and the record consists of Devonshire's Notice of Appeal, the Township's Answer, to both of which are appended numerous exhibits.

The material facts are not in dispute. In August 1972, the appellant submitted a preliminary plan of subdivision. At this time Maxatawny Township had adopted subdivision regulations but there was no zoning ordinance in effect. A zoning ordinance may, however, have been in the process of preparation because notices of public hearings on a proposed zoning ordinance were published during October and November 1972. Although appellant's preliminary plan did not comply with the lot size, and perhaps other provisions of the proposed zoning ordinance, the Supervisors, on March 5, 1973, approved the appellant's preliminary plan, subject to written conditions agreed to by the appellant, those pertinent being:

"1. That the final plan comply with all Township Ordinances and with the pending Zoning Ordinance.

"5. That the Final Plan be subject to the Maxatawny Township Zoning Ordinance as it is now pending, and to the decision of the Board of Supervisors made after a public hearing for a conditional use and the Township Supervisors reserve the right to enact such final Zoning Regulations as they may desire, without the developer obtaining any additional rights by virtue of this conditional approval, of the Preliminary Plan.

"7. That the developer assume all risk of proceeding with Final Plans at this time, and that the

[ 22 Pa. Commw. Page 557]

    developer acknowledge that he does so, without having acquired any rights by virtue of this conditional approval of the Preliminary Plan, and that he will change such Final Plan as may be required to comply ...


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