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APPEAL BY MARK-GARNER ASSOCIATES (04/08/80)

decided: April 8, 1980.

IN RE: APPEAL BY MARK-GARNER ASSOCIATES, INC. FROM THE DECISION OF BENSALEM TOWNSHIP ZONING HEARING BOARD SUSTAINING DECISION OF ZONING OFFICER OF BENSALEM TOWNSHIP. (TWO CASES) BENSALEM TOWNSHIP, APPELLANT


Appeals from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal by Mark-Garner Associates, Inc., from the Decision of Bensalem Township Zoning Hearing Board Sustaining Decision of Zoning Officer of Bensalem Township, No. 77-0718-09-5.

COUNSEL

Leslyie G. Dias, with him Henry F. Huhn, for appellant.

Carl K. Zucker, with him Edwin N. Popkin, Robert W. Freedman and Emil F. Toften, for appellee.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman and Judge DiSalle did not participate in the decision in this case. Dissenting Opinion by Judge Craig.

Author: Mencer

[ 50 Pa. Commw. Page 355]

This zoning appeal is from an order of the Court of Common Pleas of Bucks County which reversed a decision of the Bensalem Township Zoning Hearing Board and directed the issuance of building permits for units in a 557-unit condominium project on 50 acres of land.

The facts are not in dispute.

With the land originally zoned R-4, permitting the proposed condominium residential development with a density of 12 units per acre, the landowner complied with all township regulations so that its final plan was approved by the township board of supervisors on May 16, 1973 and subsequently recorded, along with the filing of a declaration of condominium.

[ 50 Pa. Commw. Page 356]

After commencing construction in the spring of 1973, the landowner sold the first unit on May 4, 1975 and since then has built and sold 116 units, with 15 more under construction.

The landowner has expended $3 million in the construction and in the substantially complete installation of service roads and underground utilities, including storm sewers, sanitary sewers, and water lines; underground electrical and telephone lines are now in 80 percent of the tract.

Shortly after the final plan approval, on June 20, 1973, the township amended the R-4 provisions to reduce allowable density from 12 to 10 units per acre. The landowner's request for additional building permits on September 24, 1976 was rejected by the township on the basis of that 1973 amendment, and, shortly thereafter, in October of 1976, the township further reduced the allowable residential density from 10 to 4 units per acre.

The township zoning hearing board rejected the landowner's appeal on the basis that Section 508(4) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10508(4), governed the matter and, as interpreted by the board, permitted the lowered density requirement to govern the remainder of the project because neither the completion of the project nor the request for the remaining unit permits had come about within the three-year period provided in that MPC section.

The court below reversed the board by expressly interpreting Section 508(4) to permit the completion of the project after the three-year deadline where the developer has proceeded in good faith to take substantial steps toward completion within the three-year period.

[ 50 Pa. Commw. Page 357]

Recently, in another case, we concluded that we could not agree with that interpretation. In Appeal of Central Penn National Bank, 47 Pa. Commonwealth Ct. 334, 408 A.2d 550 (1979), a similar case involving the same township and the same zoning amendments, we were required to reject that interpretation as a matter of law, pointing out that, after the expiration of the three-year period of Section 508(4), "the landowner stands in the same position as any other landowner vis-a-vis the existing zoning requirements." 47 Pa. Commonwealth Ct. at 337, 408 A.2d at 551. See In Re: Application of BCL, Inc., 36 Pa. Commonwealth Ct. 96, 387 A.2d 970 (1978); Mid-County Manor, Inc. v. Haverford Township Board of Commissioners, 22 Pa. Commonwealth Ct. 149, 348 A.2d 472 (1975). In Central Penn National Bank, supra, 47 Pa. Commonwealth Ct. at 337, 408 A.2d at 551, in view of an alternative request by the landowner for a variance, we remanded the matter to the court below to determine whether the landowner has a variance entitlement "'where such a landowner has so substantially improved the land that . . . the intervening zoning change if applied creates a forfeiture in that landowner.'"

The present case is in a different procedural posture. Here the landowner made no alternative request for a variance. As the township emphasizes, the landowner did not seek or rely upon any interpretation of Section 508(4) in its favor; the notice of appeal specifically averred that Section 508(4) "is not applicable" and that application of it would violate landowner's constitutional rights. Landowner relied essentially upon a vested interest theory instead of the favorable interpretation of Section 508(4) accorded by the lower court and now rejected by us. In its brief, the township itself has explicitly acknowledged those

[ 50 Pa. Commw. Page 358]

    issues to be before us by asserting, in the following terms, two of the questions involved in this case:

IV. Does final plan approval give a landowner a nonconforming use or vested right to develop in violation ...


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