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APPEAL BUCKINGHAM DEVELOPERS (08/24/81)

decided: August 24, 1981.

IN RE: APPEAL OF BUCKINGHAM DEVELOPERS, INC. FROM THE BUCKINGHAM TOWNSHIP ZONING HEARING BOARD. BUCKINGHAM DEVELOPERS, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Buckingham Developers, Inc. from the Buckingham Township Zoning Hearing Board, No. 77-5608-06-5.

COUNSEL

John A. VanLuvanee, Eastburn and Gray, for appellant.

Sondra K. Slade, with her Stephen R. Harris, Pepper, Hamilton & Scheetz, for appellee.

Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Williams

[ 61 Pa. Commw. Page 409]

This case comes before the Court on an appeal by the landowner from a decision of the Court of Common Pleas of Bucks County, affirming (1) the refusal of the Zoning Hearing Board of Buckingham Township (Board) to grant appellant's application for a variance, and (2) the Board's dismissal of appellant's challenge to the constitutionality of the zoning ordinance. From its inception, this action has proceeded

[ 61 Pa. Commw. Page 410]

    under Sections 912 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยงยง 10912, 11004.

Appellant owns a 120.66 acre tract of land, zoned agricultural, presently being used primarily for agricultural purposes, upon which it wants to construct approximately 50 single-family detached dwellings on one-acre lots. Under the provisions of the zoning ordinance, it may erect no more than five single family homes in such a development. However, it may build 35 single family units in a detached cluster, or 58 dwellings in a performance subdivision, or it may continue to use the land for agricultural purposes.

In 1977, the appellant filed both an application for a variance from the numerical limitations on single family detached homes prescribed by the zoning ordinance, and, alternatively, a constitutional challenge to the ordinance. The two issues were presented to the Board in a single application and were heard concurrently.*fn1

[ 61 Pa. Commw. Page 411]

After reviewing the evidence, the Board denied the variance request, finding, as a matter of law, that:

7. Applicant can make reasonable use of its property, as presently zoned -- without ...


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