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BOARD TOWNSHIP COMMISSIONERS ANNVILLE TOWNSHIP v. BERTRAM W. LIVENGOOD (07/19/79)

decided: July 19, 1979.

THE BOARD OF TOWNSHIP COMMISSIONERS OF ANNVILLE TOWNSHIP, APPELLANT
v.
BERTRAM W. LIVENGOOD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Bertram W. Livengood, Jr. v. The Board of Township Commissioners of Annville Township, No. 67 Year 1977.

COUNSEL

Timothy D. Sheffey, with him Robert W. Feeman, and Egli, Reilly, Wolfson and Feeman, for appellant.

Philip H. Feather and Feather & Feather, for appellee.

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

Author: Wilkinson

[ 44 Pa. Commw. Page 337]

The Board of Commissioners of Annville Township (Township) appeals an order of the Court of Common Pleas of Lebanon County which granted appellee's motion for a summary judgment to a complaint in mandamus and ordered the Township to strike a condition it had placed on its approval of appellee's subdivision plan and to permit appellee to sell the lots in the subdivision without meeting the terms of the conditions, i.e., the installation of streets, curbs and sidewalks. We affirm.

Appellee seeks to subdivide a small tract of land in the Township into the 90 by 150 foot lots fronting an alley or street, paved by the Annville Township Authority after constructing and installing a sanitary sewerage system, but not accepted or dedicated by the Township. Appellee's subdivision plan was duly approved by the Lebanon County Planning Department and submitted to the Township. On August 2, 1976, the Township approved appellee's plan, but added the following notation, "No lot shall be sold until such times as the developer installs streets, curbs and sidewalks

[ 44 Pa. Commw. Page 338]

    in accordance with Township specifications and the streets as shown on the plan are accepted by the Township." Following attempts by appellee to have the Township remove the notation, appellee filed the complaint in mandamus.

The Township contends here, as it did before the lower court, that the condition appended to its approval comports with the statutory requirements of Section 508 of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10508. In short, the Township asserts that Section 508 gives the Township the authority to place conditions on the approval of subdivision plans.

On this issue, we agree with the reasoning and holding of Judge Walter of the Court of Common Pleas and therefore adopt that portion of Judge Walter's opinion as follows:

Guided by what we found in [the Code], particularly by portions of Section 508 we conclude that if any proposed subdivision shown on a submitted plan complies with all applicable laws, ordinances and regulations it is to be approved. If it does not, it is to be rejected. Further, if there are conditions attached to the approval they must be acceptable to the applicant. If they are rejected by ...


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