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BRENTWOOD BOROUGH v. MEL COOPER (07/10/81)

decided: July 10, 1981.

BRENTWOOD BOROUGH, APPELLANT
v.
MEL COOPER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Mel Cooper v. Brentwood Borough, No. SA 509 of 1980.

COUNSEL

Lawrence G. Zurawsky, for appellant.

Harvey E. Robins, with him Chris J. Balouris, Brennan, Robins & Daley, for appellee.

Robert F. Frazier, for Amicus Curiae, Voice of Community Action League.

Judges Mencer, Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 60 Pa. Commw. Page 464]

Brentwood Borough (borough) appeals from an order of the Allegheny County Court of Common Pleas directing the borough to approve a conditional use and site plan filed by Mel Cooper, applicant, for the construction of four buildings containing a total of forty-seven garden apartment units.

The property in issue, a 2.5 acre tract owned by the applicant, is located in an R-3 Residential District under the borough's zoning ordinance (ordinance) enacted in 1973 and amended in 1976. Garden apartments are a conditional use in R-3 districts. In 1975, the borough council approved the applicant's site plan and granted him a conditional use to construct the apartments on the property, but difficulty in obtaining financing precluded the applicant from immediately going forward with the project.

Later the applicant received a preliminary federal commitment to finance the project, and in January 1980 he made the reapplication involved here, which the borough council denied.

In writing, the council justified its decision by citing concerns that the project would create (1) a fire hazard, (2) congestion in relation to the highway system, (3) an excessive burden upon the storm sewer system and (4) a reduction in the tax base of the community.

On appeal, the common pleas court, without taking additional evidence,*fn1 reversed the borough decision.

[ 60 Pa. Commw. Page 465]

Before us, the issue is whether the borough council committed any error of law or abused its discretion in rejecting the applicant's site ...


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