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APPEAL LANGMAID LANE HOMEOWNERS ASSOCIATION ET AL. GRANTING A BUILDING PERMIT TO H.C.F. INC. LANGMAID LANE HOMEOWNERS ASSOCIATION ET AL. (09/06/83)

decided: September 6, 1983.

IN RE: APPEAL OF LANGMAID LANE HOMEOWNERS ASSOCIATION ET AL. OF THE GRANTING OF A BUILDING PERMIT TO H.C.F. INC. LANGMAID LANE HOMEOWNERS ASSOCIATION ET AL., APPELLANTS


Appeal from the Order of the Court of Common Pleas of McKean County in case of In Re: Appeal of Langmaid Lane Homeowners Association, Wade Confer, Raymond Johnson, Kaye Brindley, et al. of the granting of a building permit to H.C.F., Inc., No. 1322 Civil, 1980.

COUNSEL

Charles J. Duke, Pecora & Duke, for appellants.

R. T. Mutzabaugh, Mutzabaugh, Mutzabaugh & Saunders, for appellee, H.C.F., Inc.

Murray R. Garberg, for appellees, Bradford Township and Bradford Township Zoning Hearing Board.

Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 77 Pa. Commw. Page 54]

Before this Court is the appeal of the Langmaid Homeowners Association (Association)*fn1 from an order of the Court of Common Pleas of McKean County denying the appeal of the Association and ordering the filing of a bond as a condition precedent to further appeals. For the reasons which follow, we affirm the Common Pleas Court's order.

[ 77 Pa. Commw. Page 55]

Much of the history of this case is comprehensively described in this Court's earlier opinion in Langmaid Page 55} Homeowners Appeal (Langmaid I), 65 Pa. Commonwealth Ct. 1, 441 A.2d 507 (1982), and we shall reiterate only those portions of that history now relevant. In 1979, Health Care Facilities, Inc. (HCF) had sought to obtain zoning permission to construct a nursing home on Langmaid Lane in Bradford Township, McKean County. The proposed site of the facility, however, was in both "R-10" and "R-10A" districts and under the ordinance in effect a nursing home was not a permitted use in either district. On May 5, 1980, Bradford Township amended its zoning ordinance to permit nursing homes in "R-10" and "R-10A" districts. On May 21, 1980, HCF obtained approval from the township zoning officer for its preliminary plans for the proposed nursing home on Langmaid Lane. The Association then filed an appeal to the Bradford Township Zoning Hearing Board (Board), pursuant to the provisions of Section 1005 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11005; the Board subsequently denied the Association's appeal.

HCF petitioned the Court of Common Pleas for an order requiring the Association to post an indemnity bond to protect HCF from damages due to the delay in construction resulting from the uncertainties caused by the appeal. A bond in the amount of $350,000 was ordered by that Court on August 5, 1980. That bond was subsequently vacated by order of this Court in Langmaid I due to the trial court's failure to permit evidence going to the merits of the Association's challenge.*fn2

On remand, the parties agreed to a determination of the merits of the Association's appeal at the same

[ 77 Pa. Commw. Page 56]

    time that the Court ruled on the bond petition. Two additional hearings were held at which the parties were afforded the opportunity to present evidence on the merits. On August 13, 1982, the Common Pleas Court issued its decision and order, ruling on the merits to deny the appeal; the Court also ruled that the appeal was frivolous and for the purpose of delay and thus ...


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