Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Whitpain Associates v. Whitpain Township, No. 7502714.
Louis B. Kupperman, of counsel: Dilworth, Paxson, Kalish & Levy, and John G. Kaufman and Edward J. Hughes, of counsel: Kaufman & Hughes, for appellant.
J. Peirce Anderson, for appellee.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 288]
Whitpain Associates appeals from an order of the Court of Common Pleas of Montgomery County which sustained the preliminary objections of Whitpain Township and dismissed Associates' equity suit seeking an order to compel township processing and consideration of a planned residential development (PRD) application.
The averments and exhibits of the complaint, assumed to be true for preliminary objection purposes, provide the facts which follow.
In September, 1973, Associates filed*fn1 a tentative plan application (first application), pursuant to the township's PRD ordinance, for approval of a PRD on a 107.4 acre tract.
[ 64 Pa. Commw. Page 289]
The township held public hearings on Associates' tentative plan, concluding on April 2, 1974. By letter of May 10, 1974, the township's board of supervisors denied tentative plan approval, stating twenty reasons for the rejection.*fn2 Associates did not appeal that denial.
By letter of June 4, 1974, Associates notified the township solicitor, with copies to the township manager and a supervisor, that Associates was "preparing an amended plan which we believe will remedy all alleged defects." Associates' letter requested a rehearing on the amended plan and asked to be advised if the township would require an amended application. The township did not reply.
At all times relevant here, Associates' tract was zoned R-1, permitting single-family homes with a minimum lot size of 40,000 square feet.*fn3 However, on July 22, 1974, the township repealed the PRD ordinance, effective July 27, 1974.
On July 24, 1974, the township manager advised Associates' counsel by telephone that a new application should be submitted for the amended tentative plan. In a letter dated August 6, 1974, the ...