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JOHN MCINERNEY AND FRANCES MCINERNEY v. BOARD SUPERVISORS ROSS TOWNSHIP (12/10/80)

decided: December 10, 1980.

JOHN MCINERNEY AND FRANCES MCINERNEY, HIS WIFE ET AL., APPELLANTS
v.
BOARD OF SUPERVISORS OF ROSS TOWNSHIP, MONROE COUNTY, PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Monroe County in the case of John McInerney and Frances McInerney, h/w; Ronald Ward and Lorraina Ward, h/w; Andrew McCloughan and Charmaine McCloughan, h/w; Stephen Szoke and Linda Szoke, h/w; Edward Kelly and Sandra Kelly, h/w; Richard C. Walk, Jr. and Valerie Walk, h/w; Bruce Lessig and Mary Lessig, h/w; Joseph S. Nemeth and Arlene Nemeth, h/w; David L. Saveri and Shelly Saveri, h/w; Harry W. Cook and Bernice Cook, h/w; Timothy R. Primrose and Janet Primrose, h/w; Charles E. Anderson and Gail Anderson, h/w; Michael S. Hadad and Patricia Hadad, h/w; Jon Tressler and Sherry Tressler, h/w; Kenneth C. Kochey and Sharon Kochey, h/w; Dennis Correll and Angela Correll, h/w; William C. Easterly and Kathleen Easterly, h/w; Clifford Manasco and Carol Manasco, h/w; Barry E. Trumbauer; Ernest T. Fiedler and Olive Fiedler, h/w; Joseph G. Huber and Sharon Huber, h/w; Thomas J. Piscitelli and Lynn Piscitelli, h/w; John Dillon and Eileen Dillon, h/w; Gregory L. McHale, single; Leslie G. Doyle, single; Timothy Hydresko and Karen Hydresko, h/w; James F. Bakke and Dolores Bakke, h/w; Leroy Hendushot and Patricia Hendushot, h/w; S. D. Werkheiser and Sandra Werkheiser, h/w; John Benson, single; Thelma Shuba, single; Philip McCabe, single; Mary Lou Ramsey, single v. Board of Supervisors of Ross Township, Monroe County, Pennsylvania, No. 465 June Term, 1978.

COUNSEL

Cregg E. Mayrosh, Cohn & Mayrosh, for appellants.

David W. K. Mauer, with him Edward H. Hoffner, Robinson, Hoffner & Billick, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 55 Pa. Commw. Page 241]

This is the appeal of owners of residential lots in three subdivisions located in Ross Township, Monroe County, from an Order of the Court of Common Pleas of Monroe County sustaining the demurrer of the Board of Supervisors of Ross Township to the appellants' complaint in equity. The appellants, plaintiffs below, averred in their complaint that the supervisors

[ 55 Pa. Commw. Page 242]

    of Ross Township gave final approval of the plans of the subdivisions in which their lots were located; that at the time final approval was given the subdivision and land development ordinance of Monroe County was in effect in Ross Township; that at the time final approval was given there was also extant in Ross Township its Ordinance No. 14 imposing higher construction standards than the county ordinance for streets offered for dedication as public streets of the township; that at the time the final approval was given the streets in the appellants' subdivisions had not been improved as required by Ordinance No. 14; that the supervisors had not required the developer to provide by deposit or other security an amount sufficient to cover the costs of street construction; that the appellants have requested the supervisors to improve their streets in accordance with Ordinance No. 14, to accept the streets as public streets of the township, and thereupon to maintain and clear them at public expense, but that the supervisors had refused their demands; and that for lack of maintenance and snow removal they are denied safe and reasonable access to their properties. The relief requested is an order directing the Board of Supervisors to improve the streets in their subdivisions in accordance with the requirements of Ordinance No. 14, to accept them as township streets and henceforth maintain them.

It will be noted that the appellants allege that streets conforming to the standards of Ordinance No. 14 were not installed at the time the plan received final approval and that the supervisors failed to require a deposit or other security for the installation of streets again in accordance with the standards of Ordinance No. 14. They do not allege that streets conforming to the standards of the Monroe County subdivision and land development ordinance were not installed at the time of final approval; and, since they have streets, it

[ 55 Pa. Commw. Page 243]

    is a fair inference that streets conforming to the Monroe County standards were installed. They say that Ordinance No. 14 was effective and that the supervisors should have made the developer install streets in accordance with its strict standards rather than provide the gravel roads permitted by the county ordinance, because Ordinance No. 14 effected a pro tanto repeal of the county ordinance.

Section 502 of Article V of the Pennsylvania Municipalities Planning Code (MPC),*fn1 dealing with Subdivision and Land Development, provides that when a county has adopted a subdivision and land development ordinance it shall be in effect in municipalities which have no subdivision and land development ordinances of their own, but that the later enactment of a subdivision and land development ordinance by such a municipality shall act as a repeal pro tanto of the county ordinance within the municipality. Since the exact words of the crucial sentence of Section 502 are that "[t]he enactment of a subdivision and land development ordinance by any municipality . . . shall act as a repeal pro tanto of the county . . . ordinance within the municipality" we look at Ordinance No. 14 to see if it is "a subdivision and land development ordinance" and find that clearly it is not. It simply provides width and construction standards for streets and roads offered for dedication as public facilities; it also provides that "alternate improvement standards may be permitted" which the supervisors deem equal to those of the ordinance. Neither ...


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