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MONT-BUX v. R. C. J. MCKINSTRY AND PLUMSTEAD TOWNSHIP CIVIC ASSOCIATION. MONT-BUX (11/19/76)

decided: November 19, 1976.

MONT-BUX, INC.
v.
R. C. J. MCKINSTRY AND PLUMSTEAD TOWNSHIP CIVIC ASSOCIATION. MONT-BUX, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Mont-Bux, Inc. v. R.C.J. McKinstry and Plumstead Township Civic Association, No. 75-9542-05-6.

COUNSEL

John A. VanLuvanee, with him William H. Eastburn, III, and Eastburn and Gray, for appellant.

Frank Earnheart and R.C.J. McKinstry, with them F. J. Rarig, for appellees.

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

Author: Rogers

[ 27 Pa. Commw. Page 196]

Appellant, Mont-Bux, Inc., received tentative approval from the Board of Supervisors of Plumstead Township of its preliminary plan for the creation of a planned residential development. The Board of Supervisors attached no less than forty-eight conditions to its approval, all of which were accepted and agreed to be met by Mont-Bux, Inc.*fn1 The appellees are protesting residents who appealed the Supervisor's action of tentative approval to the Plumstead Township Zoning Hearing Board presumably pursuant to Sections 1005 and 1007 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 11005, 11007. Mont-Bux, Inc. then filed its petition pursuant to Section 916 of the Code, 53 P.S. § 10916,*fn2 requesting the court to require the

[ 27 Pa. Commw. Page 197]

    appellees to post bond as a condition to continuing the proceedings before the Zoning Hearing Board. The lower court denied the prayer of Mont-Bux, Inc.'s petition and this appeal followed. Mont-Bux, Inc. contends that the lower court abused a sound discretion in refusing to order the protestants to post bond.

Abuse of discretion includes not only errors of judgment but also the overriding or misapplication of the law. Women's Homoeopathic Hospital of Philadelphia Case, 393 Pa. 313, 142 A.2d 292 (1958).

We have had to consider Section 916 on a number of occasions. In Driscoll v. Plymouth Township, 13 Pa. Commonwealth Ct. 404, 320 A.2d 444 (1974), and in Hercek v. Whitehall Township Zoning Hearing Board, 20 Pa. Commonwealth Ct. 509, 342 A.2d 127 (1975), landowners who had received building permits which were then attacked by others, asked for bonds under Section 916 and we upheld, against constitutional complaints and attacks based on an asserted abuse of discretion, lower court orders requiring bonds in substantial amounts based on evidence related to the damages reasonably anticipated to be incurred by the landowners as the result of the delay of their projects caused by the appeals. Of course the delay complained

[ 27 Pa. Commw. Page 198]

    of is a product of the first sentence of Section 916 providing that during the pendency of the proceeding contesting the approval "all land development pursuant to any challenged ordinance, order of approval of . . . any . . . body, and all official action thereunder shall be stayed. . . ." In Orleans v. The Melrose Park Improvement Association, 18 Pa. Commonwealth Ct. 185, 335 A.2d 851 (1975), we affirmed an order requiring an initial $200,000 bond as a condition to pursuing an appeal from a zoning officer's preliminary opinion that plans of a proposed development complied with applicable zoning regulations, pursuant to Section 1005(b) of the Code, 53 P.S. § 11005. In Neshaminy Plaza II v. Kelly, 21 Pa. Commonwealth Ct. 469, 346 A.2d 884 (1975), we held, inter alia, that petitions under Section 916 may be filed in any proceedings which have for their purpose the limiting or reversal of any approved application for development. The intendment of Section 916 of the Code and of the cases just mentioned is that, a landowner upon obtaining an approval to develop, whether preliminary, tentative, intermediate or final, may by Section 916 seek protection against his cost of delay by petitioning the court for a bond as a condition to the prosecution of the zoning appeal seeking to limit the approval then in hand.*fn3

Adverting again to the facts here, Mont-Bux, Inc. received from the Township Supervisors tentative approval for the construction of 494 dwelling units on 81 1/2 acres of land in Plumstead Township located in an area where planned residential developments are permitted. Planned residential developments are regulated by Article VII of ...


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