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KIMBERTON GREEN v. BOROUGH PHOENIXVILLE (06/05/79)

decided: June 5, 1979.

KIMBERTON GREEN, INC., APPELLANT
v.
THE BOROUGH OF PHOENIXVILLE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in case of Kimberton Green, Inc. v. The Borough of Phoenixville, No. 182 August Term, 1975.

COUNSEL

Thomas A. Riley, Jr., with him, of counsel, Lentz, Riley, Cantor, Kelgore & Massey, Ltd., for appellant.

Allan B. Greenwood, for appellee.

Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 43 Pa. Commw. Page 245]

This is an appeal from an order of the Court of Common Pleas of Chester County, affirming the decision of the Borough of Phoenixville (Borough), denying the request of Kimberton Green, Inc., Appellant, for a curative amendment.

On April 11, 1975 Kimberton Green, Inc. filed a curative amendment application and proposed plan of apartment development with the Borough. A hearing

[ 43 Pa. Commw. Page 246]

    was held on June 3, 1975, and the application was denied orally at a Borough Council meeting on July 15, 1975. Kimberton Green, Inc. appealed to the Court of Common Pleas of Chester County, and on March 15, 1977 an opinion and order was filed by that Court affirming the Borough's decision. This appeal followed.

Kimberton Green, Inc. is the owner of a thirty (30) acre tract located in the southwest corner of the Borough. At the time of purchase, the Kimberton tract was designated "A" residence district pursuant to a 1945 zoning classification. The "A" classification was the most restrictive under the 1945 plan; however, it did permit multi-family dwellings and other varied uses.

On December 20, 1971 the Borough adopted a comprehensive plan which resulted in the Kimberton tract being classified as a "low density development" area. This was also the most restrictive classification under the new comprehensive plan. It did not permit multi-family dwellings. The comprehensive plan did indicate, however, that if the Borough adopted a Planned Unit Development (P.U.D.) ordinance, designated areas (which included the Kimberton tract) would be permitted to develop high density clusters (that is, multi-family dwellings) if enough open space was allotted to maintain the overall low density limitations.

Then, on August 20, 1973, in order to implement the comprehensive plan, the Borough Council enacted a new zoning ordinance. Under that ordinance the Kimberton tract was placed in an R-1 zone, once again the most restrictive district, and one which did not allow multi-family dwellings.

Over a year after the enactment of the 1973 zoning ordinance, Kimberton Green, Inc. submitted a subdivision application to the Borough. The application was denied because it failed to conform to R-1 zoning, ...


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