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KAUFMAN AND BROAD v. BOARD SUPERVISORS (03/30/82)

decided: March 30, 1982.

KAUFMAN AND BROAD, INC.
v.
BOARD OF SUPERVISORS, WEST WHITELAND TOWNSHIP. KATAMOONCHINK CORPORATION, SUBSTITUTED APPELLANT. BOARD OF SUPERVISORS OF WEST WHITELAND TOWNSHIP, APPELLANT V. KAUFMAN AND BROAD, INC. (KATAMOONCHINK CORPORATION, SUBSTITUTED PLAINTIFF), APPELLEE



Appeals from the Order of the Court of Common Pleas of Chester County in the case of Kaufman and Broad, Inc. v. Board of Supervisors of West Whiteland Township, No. 226 March Term, 1974.

COUNSEL

William H. Mitman, for appellant.

William H. Lamb, Lamb, Windle & McErlane, for appellee, Board of Supervisors of West Whiteland Township.

President Judge Crumlish, Jr. and Judges Mencer, Rogers, Craig and MacPhail. Opinion by Judge Mencer. Judge Palladino did not participate in the decision in this case.

Author: Mencer

[ 65 Pa. Commw. Page 470]

Katamoonchink Corporation (petitioner) has appealed from a decision of the Court of Common Pleas of Chester County which ordered partial approval of a development plan which had been rejected by the Board of Supervisors of West Whiteland Township (Board) in the context of curative amendment proceedings. We modify and affirm.

[ 65 Pa. Commw. Page 471]

This controversy began in 1974 when the petitioner's predecessor-in-title, Kaufman and Broad, Inc., submitted a curative amendment to the Board, pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11004. Kaufman and Broad asserted that the then applicable zoning ordinance of 1965 was defective because it excluded "townhouse units, fourplex and condominium units." We considered this assertion in Kaufman & Broad, Inc. v. West Whiteland Supervisors, 20 Pa. Commonwealth Ct. 116, 340 A.2d 909 (1975) (Kaufman & Page 471} Broad I), and held that (1) the ordinance improperly excluded "townhouses" and (2) the ordinance did not exclude "condominiums" since that term describes a form of ownership, not a type of use. We were unable to determine whether the ordinance excluded "fourplexes" since that term had not been previously defined, so we remanded the case for further consideration.

The court below directed the Board to conduct additional proceedings to define the term "fourplex" and to determine whether the term described an excluded use. The Board conducted an evidentiary hearing and found:

1. The term 'fourplex' is a term used merely to describe four living units either back to back or on top of each other.

2. Such units characteristically have separate entrances for each unit.

3. The form of ownership of such units varies.

4. The units can either be owned as apartments or as single family dwellings, ...


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