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APPEAL LEWIS W. MOLNAR FROM REFUSAL COUNCIL BOROUGH BETHEL PARK TO GRANT A TENTATIVE APPROVAL FOR A PLANNED UNIT RESIDENTIAL DEVELOPMENT KNOWN AS "LEMON TREE". MUNICIPALITY BETHEL PARK (02/18/82)

decided: February 18, 1982.

IN RE: APPEAL OF LEWIS W. MOLNAR FROM THE REFUSAL OF THE COUNCIL OF THE BOROUGH OF BETHEL PARK TO GRANT A TENTATIVE APPROVAL FOR A PLANNED UNIT RESIDENTIAL DEVELOPMENT KNOWN AS "LEMON TREE". MUNICIPALITY OF BETHEL PARK, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of Louis W. Molnar from the refusal of the Council of the Borough of Bethel Park to grant tentative approval for a Planned Residential Development known as "Lemon Tree", No. S.A. 1482 of 1976.

COUNSEL

Victor R. Delle Donne, Baskin and Sears, P.C., for appellant.

Lenard L. Wolffe, with him Stanley A. Uhr, Pechner, Dorfman, Wolffe, Rounick & Cabot, for appellee.

President Judge Crumlish, Jr. and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case.

Author: Blatt

[ 64 Pa. Commw. Page 580]

The municipality of Bethel Park (Borough) appeals here from an order of the Court of Common Pleas of Allegheny County by which it was directed to grant unconditional tentative approval to the application of Lewis W. Molnar (developer) for a planned unit residential development (PURD).

In September of 1975 the Borough enacted a Planned Unit Residential Ordinance pursuant to Article VII of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยงยง 10701-10711.*fn1 The developer applied thereafter to the Borough Council for tentative approval of a PURD to be known as Lemon Tree Village. The Borough's Planning and Zoning Commission recommended that tentative approval be granted, subject to the resolution of drainage and grading problems to the satisfaction of the Borough Engineer and the Department of Environmental Resources, but, after subsequent extensive public hearings, the Borough Council denied the application.*fn2 On appeal, the Court of Common Pleas of Allegheny County, after taking additional evidence including a view of the property, remanded the matter to the Borough Council for reconsideration consistent with its opinion.*fn3 The Borough

[ 64 Pa. Commw. Page 581]

    then appealed to this Court which quashed the appeal as interlocutory and ordered that the matter be remanded to the Borough Council for further proceedings consistent with the guidelines set forth in this Court's opinion and with the directives of the lower court.*fn4 On remand, following a hearing at which the developer presented evidence concerning the three issues listed for reconsideration, the Borough Council, after considering the entire record, including all submissions made by the developer since filing his application, again denied the application. The developer once again appealed to the Court of Common Pleas which, without taking additional evidence, again reversed the

[ 64 Pa. Commw. Page 582]

Borough Council and ordered it to grant unconditional tentative approval. This appeal followed.

The task presently before us is to review the second decision of the court below. And where, as here, that lower court has taken no additional evidence, our review is limited to a determination of whether or not the Borough Council committed an abuse of discretion or an error of law and whether or not its findings of fact were supported by substantial competent evidence. Soble Construction Co. v. Zoning Hearing Board of the Borough of East Stroudsburg, 16 Pa. Commonwealth Ct. 599, 329 A.2d 912 (1974).

The Borough contends that the developer's application was demonstrably adverse to the public interest and that, therefore, the Borough neither abused its discretion nor committed an error of law in rejecting it. It argues that the plan's inconsistency with the Borough's comprehensive plan, its substantial departure from existing land use regulations otherwise applicable to the subject property, its incongruity with the character of the surrounding neighborhood and the serious storm water and traffic problems posed by construction of a development of this type on the particular site, when viewed cumulatively, comprise public interest objections sufficiently substantial and exceptional in nature to support denial of the application under the standards set forth by this Court in Michaels Development Co. v. ...


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