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TOWNSHIP LOWER ALLEN v. HARDEE'S FOOD SYSTEMS (06/17/81)

decided: June 17, 1981.

TOWNSHIP OF LOWER ALLEN, APPELLANT
v.
HARDEE'S FOOD SYSTEMS, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Cumberland County in case of Hardee's Food Systems, Inc. v. Township of Lower Allen, No. 109 Civil Term, 1980.

COUNSEL

Robert E. Yetter, Metzger, Wickersham, Knauss & Erb, for appellant.

Ronald M. Katzman, Goldberg, Evans & Katzman, for appellee.

Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 60 Pa. Commw. Page 75]

On December 11, 1978, the Commissioners of Lower Allen Township, Cumberland County, Pennsylvania (Commissioners) approved a subdivision plan for a tract of land purchased by Hardee's Food Systems, Inc. (Hardees) upon which Hardees plan to build a restaurant. The tract is zoned C-G, Commercial General District. Its southern boundary abuts an R-2 Residence District (Multi-Family Dwellings). On the

[ 60 Pa. Commw. Page 76]

    north, the tract is bounded by Old Gettysburg Road, on the east by Lebanon Avenue and on the west by Hartzdale Drive. There is a traffic light at the intersection of Hartzdale Drive with Old Gettysburg Road.

On March 12, 1979, the Commissioners approved the application for use by Hardees but limited ingress and egress off Old Gettysburg Road to eastbound traffic and ingress and egress off Hartzdale Drive to traffic in the northbound lane. No ingress or egress was provided for Lebanon Avenue traffic. Hardees did not appeal that action by the Commissioners.

In a separate proceeding, however, the Pennsylvania Department of Transportation (PennDot) denied Hardees all access to Old Gettysburg Road noting that the property as a residence was serviced by a driveway on Lebanon Avenue as its primary means of ingress and egress and that the Township had given approval to entry from Hartzdale Drive. When that decision was appealed to this Court we upheld PennDot's action, Hardee's Food Systems, Inc. v. Department of Transportation, 50 Pa. Commonwealth Ct. 331, 333, 413 A.2d 1, 2 (1980), which was taken "'[i]n light of the high volume of traffic and the fact that the property has access to two township streets.'" (Emphasis added.)

While Hardees' appeal to this Court from PennDot's action was pending, Hardees reapplied to the Commissioners for use of the subject tract with a request for ingress and egress from Lebanon Avenue and ingress and egress from Hartzdale Drive. The Commissioners again granted the use but conditioned it upon ingress and egress only by northbound traffic from Hartzdale Drive, with egress being limited to a right turn from Hardees onto Hartzdale Drive and providing for barricades to control that traffic and again denying ingress or egress for traffic on Lebanon Avenue. Hardees appealed that decision to the Court

[ 60 Pa. Commw. Page 77]

    of Common Pleas of Cumberland County which affirmed the Commissioners' order except that part thereof which denied ingress and egress with respect to traffic on Lebanon Avenue. The ...


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