Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Peter Carlino and Elizabeth Carlino, his wife v. Whitpain Investors, Whitpain Township, Whitpain Township Board of Supervisors and Pennsylvania Department of Transportation, No. 79-16869.
Edward J. Hughes, for plaintiffs.
John M. Hrubovcak, Assistant Attorney General, with him Ward T. Williams, Chief Counsel and Edward G. Biester, Jr., Attorney General, for Commonwealth of Pennsylvania, defendants.
Marc B. Kaplin, with him Howard Gershman, for Whitpain Township and Whitpain Township Board of Supervisors, defendants.
Irving L. Mazer, for Whitpain Investors, defendant.
Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.
[ 52 Pa. Commw. Page 147]
Peter Carlino and his wife (petitioners) instituted this action for a preliminary injunction to require (1) that the Pennsylvania Department of Transportation (PennDOT) revoke a highway occupancy permit it had issued to Whitpain Investors (developer); (2) that developer, on its forty-seven acre tract, restore a special setback and eliminate a particular access road; and that (3) Whitpain Township (township) refrain from conditioning developer's permit to construct a multi-family complex on the tract upon provision of such an access road.*fn1
PennDOT has filed preliminary objections raising a question of petitioners' standing, the defense of sovereign immunity, and a demurrer. The township and developer have also filed preliminary objections in which they demur to petitioner's complaint. Of course, preliminary objections admit as true all facts properly pleaded, as well as all inferences reasonably deducible therefrom.
Developer's forty-seven acre tract of land is located between Narcissa Road, Township Line Road and Stenton Avenue in Whitpain Township, Montgomery
[ 52 Pa. Commw. Page 148]
County. Petitioners' complaint alleges that on May 31, 1973, the township rezoned developer's tract from its former R-1 classification to R-3 multi-family, that the rezoning was accompanied and therefore made conditional upon a stipulation of the previous owner that no access road to Stenton Avenue would be permitted, and that a 300-foot buffer would be provided from the right-of-way line of Stenton Avenue.
Developer is constructing a 376-unit apartment complex on the tract, the Stenton Avenue side of which is near petitioners' residence. In paragraph 11 of their complaint, petitioners allege that the township breached the terms of the "conditional rezoning" by conditioning its approval of the developer's development plan for the apartment complex upon provision of an access road to Stenton Avenue. As averred in the complaint, PennDOT on April 25, 1978 granted a driveway permit to developer for access to Stenton ...