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TOWNSHIP O'HARA v. DOMINIC N. DISILVIO AND EILEEN L. DISILVIO (04/28/80)

decided: April 28, 1980.

TOWNSHIP OF O'HARA, COUNCIL OF O'HARA TOWNSHIP AND O'HARA TOWNSHIP PLANNING COMMISSION, APPELLANTS
v.
DOMINIC N. DISILVIO AND EILEEN L. DISILVIO, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Dominic N. DiSilvio and Eileen L. DiSilvio, his wife, v. Township of O'Hara, Council of O'Hara Township and O'Hara Township Planning Commission, No. GD-1031.

COUNSEL

Jerry F. Palmer, with him Richard M. Zomnir, Thorp, Reed & Armstrong, for appellants.

Victor R. Delle Donne, Baskin and Sears, for appellees.

Judges Crumlish, Jr., Mencer, Rogers, DiSalle and MacPhail. President Judge Bowman and Judges Wilkinson, Jr., Blatt and Craig did not participate. Opinion by Judge Crumlish, Jr. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.

Author: Crumlish

[ 51 Pa. Commw. Page 51]

This is a zoning appeal by the Township of O'Hara (Township), the Council of O'Hara Township (Council), and the O'Hara Township Planning Commission (Commission) from an Allegheny County Common Pleas Court decision summarily approving both a proposed subdivision plan and a required right-of-way width variance. We affirm.

Dominic and Eileen DiSilvio (Appellees) own a four-acre tract of land in the Township which they proposed to subdivide for single-family dwellings. Tentative informal subdivision plans were prepared by Appellees' engineer and architect, and submitted to the Commission at informal review meetings on November 19, 1973, February 18, 1974 and January 20, 1975. Appellees were advised that a variance would be necessary to substitute a proposed 40 foot right-of-way in place of the 50 feet required by Section 55-17(D) of the O'Hara Township Code (Code).*fn1

[ 51 Pa. Commw. Page 52]

On February 21, 1977, Appellees submitted a revised set of tentative plans to the Commission and the Township engineer proposing six lots. At some time before March 15, 1977, a second set of tentative plans proposing seven lots was submitted to the Commission for staff review. Though the plans met with a number of objections, the Commission explained to Appellees, "that the matter of primary concern is obtaining action on a variance from Council from the 50' R/W [right-of-way] for the road. The Planning Commission does not take action on a preliminary review of this type."*fn2

On May 5, 1977, Appellees filed a revised "Preliminary Plan of Lots" with the Township Secretary, which plan noted the necessity for acquiring the ten foot right-of-way width variance. However, Appellees failed to meet either the formal subdivision application requirements*fn3 or the formal variance filing requirements,*fn4

[ 51 Pa. Commw. Page 53]

    but the record does reveal an oral request to the Township Secretary for the variance.

At the Council's regularly scheduled meeting on June 14, 1977, Appellees' subdivision variance request for reduction in right-of-way standards from 50 to 40 feet was referred to the Commission for an advisory ...


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