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COUNCIL BOROUGH BALDWIN v. A. RICHARD NERNBERG (02/09/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 9, 1983.

COUNCIL OF THE BOROUGH OF BALDWIN, APPELLANT
v.
A. RICHARD NERNBERG, T/A/D/B/A A.R. BUILDING CO., APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of A. Richard Nernberg, t/d/b/a A.R. Building Co. v. The Council of the Borough of Baldwin, No. SA 240 of 1981.

COUNSEL

John R. Luke, Luke & Anthony, for appellant.

Jay D. Glasser, Hollinshead and Mendelson, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 71 Pa. Commw. Page 643]

The Council of the Borough of Baldwin (Borough Council) appeals an order of the Court of Common Pleas of Allegheny County which reversed its denial of appellee A. Richard Nernberg's*fn1 application for tentative approval of a plan to develop 120 garden apartment units in an area designated by Borough ordinance as a planned residential district (PRD).

After holding a hearing on the appellee's application as required by ordinance, the Planning Commission submitted a report to the Borough Council recommending approval of the plan. After conducting its own public hearing, however, the Borough Council voted to deny the plan on the grounds that the plan failed to meet all of the requirements of applicable ordinances and was not in the public interest.

Our scope of review where, as here, the court of common pleas took no additional evidence, is limited to a determination of whether or not the governing body abused its discretion or committed an error of law. Board of Commissioners of Lower Merion Township v. Haslett, 69 Pa. Commonwealth Ct. 1, 450 A.2d 298 (1982).

After examining the Borough Council's decision, its brief,*fn2 and the entire record, the court of common pleas found, and we agree, that the Borough Council erred and therefore abused its discretion in denying the appellee's plan. Its determination that a PRD was

[ 71 Pa. Commw. Page 644]

    not permitted in the location in question, being inconsistent with the comprehensive plan, and its failure to advance public interest objections to the said plan of an exceptional and specific nature were clearly in error. See Michaels' Development Company, Inc. v. Benzinger Township Board of Supervisors, 50 Pa. Commonwealth Ct. 281, 413 A.2d 743 (1980); Doran Investments v. Muhlenberg Township Board of Commissioners, 10 Pa. Commonwealth Ct. 143, 309 A.2d 450 (1973).

For the reasons stated in the able opinion of Administrative Judge Papadakos in this matter, we will, therefore, affirm the order of the court of common pleas. The said opinion and order may be found at A. Richard Nernberg, t/a/d/b/a A.R. Building Co. v. The Council of the Borough of Baldwin, Pa. D. & C.3d (1983).

Order

And, now, this 9th day of February, 1983, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby affirmed.

Disposition

Affirmed.


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