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decided: January 24, 1980.


Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Murray H. Goodman, trading as the Goodman Company, and Murray H. Goodman and Bernard Berman, trading as Cedar Crest Associates, a Partnership, Appellants v. The Board of Commissioners of the Township of South Whitehall, Appellee, West End Citizens Advisory and Notification Association, Clifford L. Weidner, Joe E. Winegardner, Harold T. Korn, Charles G. Bostick, David C. Rowan, Richard E. Fried, Forrest A. Samuels and the City of Allentown, Intervenors, No. 78-C-139.


Bernard Chanin, of counsel, Wolf, Block, Schorr and Solis-Cohen, with him Brian P. Flaherty, William E. Schantz, of Snyder, Doll & Schantz, Charles Steven Miller, for appellants.

J. Jackson Eaton III, with him Richard W. Shaffer, of Butz, Hudders & Tallman, for appellee.

Paul A. McGinley, with him William C. Wickkiser, for intervenor.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge DiSalle. Dissenting Opinion by Judge Blatt.

Author: Craig

[ 49 Pa. Commw. Page 37]

Developers here appeal from a decision of the Court of Common Pleas of Lehigh County which affirmed denial of preliminary plan approval for a proposed shopping center subdivision under the Subdivision Ordinance*fn1 (regulations) of South Whitehall Township (township), as governed by Article V of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, §§ 501-515, 53 P.S. §§ 10501-10515.

The proposal involves a 16.6 acre tract in the township, adjacent to the city of Allentown, zoned GC-General Commercial, bounded on the north by Tilghman Street, on the east by single-family residences located between it and North Street, on the south by Liberty Street (a street which is partly within an R-3 Residential District) and on the west by Cedar Crest Boulevard and a municipal park. The plan proposes,

[ 49 Pa. Commw. Page 38]

    in addition to parking, four buildings: the largest is to be a one-story supermarket with adjacent row of shops, to be located diagonally across the southeast corner; a bank building is proposed for the northeast corner; a two-story retail store is proposed for the northwest corner; and a two-story professional office building is to be located in the southwest corner. The proposed location of driveways and other planned features and equipment will be discussed below as pertinent. At the time of application, the property was being used as the site of a motel and restaurant.

There is no dispute that all of the proposed uses and parking comply with the use requirements and other specifications of the GC Commercial District.

The highest elevation of the tract is along its northerly edge; from that portion, the topography slopes generally downward to a point approximately 50 feet lower at the extreme southeast corner.

The township regulations describe such a land development as a "major subdivision" and prescribe an informal sketch plan step, in addition to the familiar two-step process of preliminary plan approval and final plan approval.

In pursuing the preliminary plan approval application, developers, as required, proceeded first before the township planning commission, which, after conducting public hearings on five dates, recommended in writing to the township board of commissioners that the preliminary plan be approved subject to approximately 25 specified conditions.

The township board of commissioners (board), without receiving any new evidence, proceeded in two public meetings on the record developed before the planning commission to adopt a resolution denying the preliminary approval on the basis of 16 findings. As noted below, many of the reasons for denial involved

[ 49 Pa. Commw. Page 39]

    substantially the same subjects as those embodied in the conditions attached to the planning commission recommendation.

Upon the developers' appeal from the board's denial to the Court of Common Pleas of Lehigh County, that court, without taking additional evidence, dismissed the appeal and affirmed the decision of the board.

Recognizing, as did the lower court, that judicial review, where no additional evidence has been received in court, is limited to whether the local board 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), the developers claim that the findings adopted by the board as a basis for denial of preliminary plan approval are either legally invalid or inadequate as a matter of law to justify that action.

The lower court concluded that the denial could stand if validly supported by any one of the several findings adopted. County Builders, Inc. v. Lower Providence Township, 5 Pa. Commonwealth Ct. 1, 287 A.2d 849 (1972). Hence the court below affirmed the denial because it concluded that Finding No. 3 was legally sufficient and not an abuse of discretion.

Accordingly, passing over Findings 1 and 2 which are merely descriptive of the location and application, we also examine Finding No. 3, which begins:

3. The component parts of the proposed subdivision have been arranged so as to maximize the detrimental affects [sic] of such a subdivision upon the surrounding neighborhood in general and the abutting residential properties in particular and is not in conformity with the Subdivision and Land Development Ordinance of South Whitehall Township, Sections 131.11, 713.03, and 721.

[ 49 Pa. Commw. Page 40]

Lettered subparagraphs of the same finding expand upon it by referring to: (a) proximity of the primary (supermarket and shops) building to residential properties, (b) noise from the rear of that building, (c) glare from the rear of that building, (d) odor from that building, (e) the greatest commercial building "mass" being located adjacent to the residential area, (f) a two-story structure being located at the top of the steepest embankment and thus at a ...

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