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EDWARD J. GOSSMAN AND SUSAN J. GOSSMAN v. LOWER CHANCEFORD TOWNSHIP BOARD SUPERVISORS AND EDGAR DELASKI (10/16/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 16, 1981.

EDWARD J. GOSSMAN AND SUSAN J. GOSSMAN, APPELLANTS
v.
LOWER CHANCEFORD TOWNSHIP BOARD OF SUPERVISORS AND EDGAR DELASKI, APPELLEES

Appeal from the Order of the Court of Common Pleas of York County in the case of Edward J. Gossman and Susan J. Gossman v. Lower Chanceford Township Board of Supervisors, and Edgar DeLaski, No. 80 S 912.

COUNSEL

William H. Poole, Jr., with him John W. Thompson, Jr., Shoemaker, Thompson & Ness, for appellants.

Lillian M. Morgan, with her Donald L. Reihart, Laucks & Monroe, for appellee, Edgar DeLaski.

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

Author: Mencer

[ 62 Pa. Commw. Page 230]

Edward and Susan Gossman (appellants) have appealed from a decision of the Court of Common Pleas of York County which quashed their appeal of a subdivision plan approval by the Board of Supervisors of Lower Chanceford Township. We affirm.

The appellants purchased a new home in an approved subdivision developed by Edgar DeLaski. Shortly thereafter, DeLaski submitted an amended subdivision plan to the Board of Supervisors for approval.*fn1 The amended plan was approved on or about February 5, 1980. The appellants filed an action, titled

[ 62 Pa. Commw. Page 231]

"Zoning Appeal," in the Court of Common Pleas of York County in an attempt to have the approval of the amended plan set aside. DeLaski moved to quash the action for two reasons: 1) that the appellants lacked standing to bring the action in the Court of Common Pleas since they were not owners of the land or parties before the Board of Supervisors*fn2 and 2) that the appellants were not entitled to relief because they averred no violation of the Lower Chanceford Township Subdivision Ordinance (Ordinance). The Court agreed with the first contention and granted the motion. This appeal followed.

Section 1007 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11007, provides, in pertinent part, that

[p]ersons aggrieved by a use or development permitted on the land of another who desire to secure review or correction of a decision or order of the governing body . . . , on the grounds that such decision or order is not authorized by or is contrary to the provisions of an ordinance or map shall first submit their objections to the zoning hearing board. . . .

Therefore, the Court of Common Pleas could not hear an action based upon a provision of the Ordinance or the official map of Lower Chanceford Township until after a challenge had been submitted to the zoning hearing board. Since the appellants did not submit any challenge to the zoning hearing board, the Court of Common Pleas was powerless to hear an "appeal" based upon an ordinance or map provision.

[ 62 Pa. Commw. Page 232]

The appellants contend that their "appeal" was not based upon a provision of the Ordinance or official map. Rather, they argue that it was based upon an abuse of discretion by the Board of Supervisors in failing to impose conditions on the subdivision plan to reflect certain alleged private restrictive covenants. This argument must fail.

This Court has held that the governing body may not withhold approval of a subdivision plan which complies with all applicable regulations. Goodman v. Board of Commissioners of the Township of South Whitehall, 49 Pa. Commonwealth Ct. 35, 411 A.2d 838 (1980). We have also held that a municipality may not require a subdivision plan to conform to standards not contained in the subdivision ordinance. Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa. Commonwealth Ct. 535, 422 A.2d 897 (1980). Therefore, the Board of Supervisors of Lower Chanceford Township had no discretion to consider private restrictive covenants in imposing conditions on the approval of DeLaski's amended subdivision plan unless the Ordinance permitted them to do so.*fn3 Since the Ordinance did not permit the Board of Supervisors to consider private restrictive covenants before granting subdivision plan approval, the appellants had no cause of action to bring before the Court of Common Pleas.

The appellants also contend that the Court of Common Pleas erred in failing to transfer their "appeal" to the zoning hearing board. They cite Kim v. Estate of Heinzenroether, 37 Pa. Commonwealth Ct. 328, 390

[ 62 Pa. Commw. Page ]

Page 233J. Gossman and Susan J. Gossman from a decision of the Board of Supervisors of Lower Chanceford Township, is hereby affirmed.

Disposition

Affirmed.


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