Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Appeal of Elias J. Hakim, Jr., t/d/b/a Manor Investment Company from the Decision of the Board of Commissioners of the Township of O'Hara, S.A. No. 159 of 1974.
Frank J. Gaffney, with him Thorp, Reed & Armstrong, for appellant.
David W. Craig, with him Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Mencer.
[ 27 Pa. Commw. Page 407]
Elias J. Hakim, the instant appellee, has been trying since November 1973 to obtain the approval of the competent authorities of O'Hara Township, Allegheny County, of his proposal to construct apartment houses in a zoning district where such development is permitted as a planned residential development upon compliance with the provisions of an ordinance adopted pursuant to Article VII of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10701 et seq. A history of the appellee's efforts until October 15, 1974, appears in Board of Commissioners of the Township of O'Hara v. Hakim, d.b.a. Manor Investment Co., 19 Pa. Commonwealth Ct. 661, 339 A.2d 905 (1975). There we disagreed with a Court of Common Pleas order requiring tentative approval of appellee's plan for a single building project because we concluded that the building offended a dimensional requirement of the township's planned residential development ordinance. We, nevertheless, directed that the appellee's plan be granted tentative approval, subject to his compliance with the dimensional requirement for any building and
[ 27 Pa. Commw. Page 408]
subject to such other reasonable and economically feasible conditions as the township should require.
In compliance with our order, the appellee amended his plan to propose two buildings each complying with the dimensional requirements and the township, also in compliance with our order, tentatively approved the plan, subject to conditions, none of which were objected to by the appellee. One of those conditions was as follows:
18. That final plans will be presented showing locations and easements required for water lines and sanitary sewer lines as approved by the proper authorities, and if the sanitary sewers are not adequate, then the owner-developer will install adequate sanitary sewers.
The appellee says that he did not object to this condition because at the hearing in the court below which resulted in that court's order directing tentative approval, the evidence, including that of the township, was to the effect that the public sanitary sewer line on the tract was adequate to serve the appellee's apartment project despite infiltration of surface water at locations above the appellee's property which the township was taking steps to cure, and because the trial judge found that "[t]he sanitary sewer system presently available to the property is more than sufficient to accommodate the proposed development."
On March 9, 1976, the township supervisors gave final approval to plans for Phase I of appellee's development, consisting of one of the proposed buildings to contain 95 apartments, subject to the appellee's compliance with six so-called conditions, five of which merely require compliance with existing township building and development regulations. The sixth condition to final approval, which is the occasion of this case, was:
[ 27 Pa. Commw. Page 4096]
. Paragraph 18 above-referred to (a condition of tentative approval) is amended to read as follows: 'That final plans will be presented showing locations and easements required for water lines and sanitary sewer lines as approved by the proper authorities; and if the sanitary sewers are not adequately designed, including all legally allowable maximum infiltration, and a factor for age, and normal safety factors, then the owner-developer will install adequate sanitary sewers, as necessary.'
It is noted that whereas condition 18 to the tentative approval provides that "if the sanitary sewers are not adequate then the owner-developer will install adequate sanitary sewers," so-called condition 6 to the final approval adds to and changes condition 6 by the language emphasized in the following quotation: "If the sanitary sewers are not adequately designed, including all legally allowable maximum infiltration, and a factor for age, and normal safety factors, then the owner-developer will install adequate sanitary sewers, as necessary." It is, of course, immediately apparent that the language added by so-called condition 6 to final approval is so imprecise it could be considered not to add anything to condition 18. Upon prudent inquiry as to its purpose, however, the appellee discovered the following, (1) that the amendment was the township's way of expressing its position that the sanitary sewer line, despite the earlier hearing and finding, was inadequate, (2) that the township had in its possession an opinion of its engineer that the sanitary sewer line was inadequate, and (3) that the project could not be built unless the alleged inadequacy should be cured. We here note that the eight inch sewer line which serves the appellee's property is a small part of a line 5 to 7 miles in length. It is not clear whether the township's new position was
[ 27 Pa. Commw. Page 410]
that, in order to construct the 95 dwelling units proposed by Phase I, the appellee would be required to reconstruct the line in its entirety or only in some unspecified fashion alter the line within the confines of his own land. Believing that either such requirement was an unreasonable condition, unreasonably imposed, the appellee filed with the Court of Common Pleas a petition for implementation of the order accompanying this, the Commonwealth Court's earlier opinion, providing that any condition to tentative approval should be reasonable and economically feasible. The lower court conducted a hearing at which, for the second time, the matter of the adequacy of the sewer line serving the property was explored.
The appellee's engineering witness testified upon a proper foundation that the line was adequate. The township's evidence consisted of the testimony of a registered surveyor employed by the engineering firm which had been in the employ of the township at the time of the first hearing who, by the expedient of calling the 5 to 7 mile long sewage line a lateral, rather than a main, produced ...