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MICHAELS DEVELOPMENT COMPANY v. BENZINGER TOWNSHIP BOARD SUPERVISORS. ROBERT J. MAKUFKA ET AL. (04/01/80)

decided: April 1, 1980.

MICHAELS DEVELOPMENT COMPANY, INC. ET AL.
v.
BENZINGER TOWNSHIP BOARD OF SUPERVISORS. ROBERT J. MAKUFKA ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of the Fifty-Ninth Judicial District, Elk County Branch, in case of Appeal of Michaels Development Company, Inc. and Michael J. Levitt from Benzinger Township Board of Supervisors, No. 78-377.

COUNSEL

David A. Whitney, with him Cartwright, Fernan & Whitney, for appellants, Concerned Citizens of Benzinger Township.

Thomas G. Wagner, for appellee, Benzinger Township Board of Supervisors.

Victor R. Delle Donne, with him Baskin & Sears, for appellees, Michaels Development Company, Inc., and Michael J. Levitt.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. President Judge Bowman and Judge DiSalle did not participate in the decision in this case.

Author: Macphail

[ 50 Pa. Commw. Page 283]

The Benzinger Township Board of Supervisors (Board) and Robert J. Makufka and other concerned citizens of Benzinger Township (Intervenors) appeal from an order of the Court of Common Pleas of Elk County, which vacated a decision of the Board.*fn1 After taking additional testimony, the trial court granted tentative approval with conditions attached to the application of Michaels Development Company, Inc. (Developer) for a planned residential development (PRD), pursuant to Article VII of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10701 et seq.

The Board and Intervenors argue that the trial court abused its discretion in granting the tentative approval because it failed to consider substantial evidence

[ 50 Pa. Commw. Page 284]

    that the Developer's proposed PRD was not in the public interest. Although the Board and Intervenors agree that the Developer's plans have met all of the requirements of the Benzinger Township Planned Residential Development Ordinance (Ordinance), they state that Section 709(b) of the MPC, 53 P.S. § 10709(b), additionally requires the Board to "set forth with particularity in what respects the development plan would or would not be in the public interest" including, but not limited to, six specific areas of inquiry. The Board found that the Developer's plan fell short of meeting public interest criteria in several respects:

(1) the proposed development is inconsistent with the township's comprehensive plan;

(2) the requirements for common open space have not been met;

(3) there have been departures from township zoning regulations which are not in the public interest;

(4) aggravation of an existing sewage problem in the neighborhood would create an adverse relationship between the proposed ...


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