Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Gus Karaliotis and Jean Karaliotis, his wife, t/a Newburg Snack Bar v. The Board of Supervisors of Lower Nazareth Township, No. 1979-C-8879.
Cregg E. Mayrosh, Cohn & Mayrosh, for appellant.
Gus Milides, for appellees.
Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Craig.
[ 65 Pa. Commw. Page 525]
The Township of Lower Nazareth appeals from an order of the Court of Common Pleas of Northampton County, sustaining the appeal of Mr. and Mrs. Gus Karaliotis by striking certain conditions from the township's approval of their final subdivision plan.
Initially, the township's board of supervisors had granted preliminary approval to the Karaliotis' proposed subdivision plan for a fast-food eating establishment, subject to five conditions, including requirements that an exit onto Route 191, a state highway, be reduced from twenty-two feet to fourteen feet in width, and that a traffic study be conducted by the Karaliotises six months after the commencement of the business operation.
Later the township granted final subdivision approval subject to the same conditions and also to additional conditions, including a requirement that the Karaliotises be responsible for the installation cost of any traffic control devices which may be recommended and approved by the Pennsylvania Department of Transportation (PennDOT). Pursuant to subsequent appeal by the Karaliotises, the lower court struck some of the conditions of final approval, primarily those relating to the traffic matters.*fn1
Three general questions arise here, all involving interpretation of the Pennsylvania Municipalities
[ 65 Pa. Commw. Page 526]
Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202:
1. May a municipality add a condition to its final approval of a subdivision plan if that condition was not incorporated in the preliminary approval?
2. Does a landowner waive the right to challenge the imposition of a condition attached to preliminary approval if the landowner first challenges ...