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DAVID A. SWINEHART v. UPPER POTTSGROVE TOWNSHIP (02/11/76)

decided: February 11, 1976.

DAVID A. SWINEHART, APPELLANT
v.
UPPER POTTSGROVE TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of David A. Swinehart v. Upper Pottsgrove Township.

COUNSEL

Arthur F. Loeben, Jr., with him Wells, Campbell, Wells & Loeben, for appellant.

Sherwood L. Yergey, with him Kranzley, Wrigley, Yergey, Daylor, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 23 Pa. Commw. Page 283]

On March 1, 1974 David A. Swinehart filed an application for approval of a subdivision plan with the Board of Commissioners (Board) of Upper Pottsgrove Township in Montgomery County. He proposed to subdivide a 95.2 acre tract of land into 135 lots to be developed for residential purposes. Upon receipt of the application, the

[ 23 Pa. Commw. Page 284]

Board submitted Swinehart's plan to both the Montgomery County and Upper Pottsgrove Township planning commissions for their recommendations. These agencies, in letters dated May 3, 1974 and May 9, 1974 respectively, strongly recommended that the plans be denied approval. The Board then met on May 28, 1974 and formally rejected the plan. In a letter from the Board dated May 29, 1974 Swinehart was notified that his plan had been rejected "on the recommendation of the Upper Pottsgrove Planning Commission as outlined in their letter of May 9, 1974, and on the recommendation of the Montgomery County Planning Commission as outlined in their letter of May 3, 1974." Swinehart appealed this rejection to the Court of Common Pleas of Montgomery County which affirmed the decision of the Board without taking additional evidence. This appeal followed.

Our scope of review where the court below did not take additional evidence is to determine whether or not the governing body abused its discretion or committed an error of law. Horst v. Derry Township Board of Supervisors, 21 Pa. Commonwealth Ct. 556, 347 A.2d 507 (1975).

In Brauns v. Swarthmore Borough, 4 Pa. Commonwealth Ct. 627, 288 A.2d 830 (1972) this Court stated that it was an error of law for the governing body to reject a subdivision plan in the absence of findings that the plan violated any applicable statute or ordinance. Moreover, we have also held that the rejection of any such plan must be communicated in the manner required by the subdivision and land development provisions of the Pennsylvania Municipalities Planning Code*fn1 (MPC). Horst v. Derry Township Board of Supervisors, supra.

Here Swinehart asserts that the Board's letter of rejection fails to meet the notification requirements as set forth in Section 508(2) of the MPC, 53 P.S. § 10508(2)

[ 23 Pa. Commw. Page 285]

    and that, more significantly, his subdivision plan complies in all respects with the township's ...


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