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NEW BETHLEHEM BOROUGH COUNCIL v. JOHN MCVAY (11/02/83)

decided: November 2, 1983.

NEW BETHLEHEM BOROUGH COUNCIL, APPELLANT
v.
JOHN MCVAY, EXECUTOR OF THE ESTATE OF SUSAN MCVAY, DECEASED, AND FEDERAL DEVELOPMENT, INC., APPELLEES



Appeal from the Order of the Court of Common Pleas of Clarion County in the case of In Re: Application of John McVay, Executor of the Estate of Susan McVay, deceased, and Federal Development, Inc., for Curative Amendment, No. 33 C.D. 1982.

COUNSEL

William R. Strong, for appellant.

Stuart S. Sacks, Smigel, Anderson & Sacks, with him James G. Arner, for appellees.

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

Author: Rogers

[ 78 Pa. Commw. Page 169]

The New Bethlehem Borough Council, acting for the borough, has appealed from an order of the Court of Common Pleas of Clarion County directing the borough to rezone a parcel of land because the borough zoning ordinance made insufficient provision for the use of land for multi-family dwellings.

The Clarion County Housing Authority applied for and received approval from the United States Housing and Urban Development Department, HUD, for a low cost housing project in New Bethlehem Borough. The New Bethlehem Borough Council agreed in writing with the county housing authority to make changes in the borough zoning regulations at and near the site necessary to accommodate the project. Borough council also adopted a resolution approving a loan from HUD for planning the project, in which council declared that there existed a need in the borough for low rent housing which was not being met by private enterprise. These events took place in 1979.

By the year 1981, the county housing authority with approval of HUD had chosen a developer for the project, Federal Development Inc. After considering a number of other sites in the borough, the housing authority and HUD chose as the location for the project a four and a half acre parcel of land owned

[ 78 Pa. Commw. Page 170]

    by the Estate of Susan McVay, deceased, of which John McVay is the executor. Federal Development Inc. entered into an agreement with the McVay estate for the purchase of the latter's land and John McVay, executor, and Federal Development Inc. are the appellees in this appeal.

The McVay parcel is located in an R-1 zoning district where the explicitly permitted residential use of land for residential purposes is limited to the creation and occupancy of single family detached dwellings and where so-called planned unit developments are allowed as a conditional use. The appellees applied to the borough council to rezone the McVay parcel from R-1 to R-2, in which latter district their proposal to erect eight buildings containing a total of forty dwelling units for rental to persons with low and moderate incomes was permitted. Borough council refused the application for rezoning. The appellees then submitted a challenge to the validity of the borough zoning ordinance to borough council, with a request for a curative amendment proposing that the McVay parcel be placed in the R-2 zoning district. Section 1004 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11004. Borough council held a hearing at which a thorough exploration of the factual issues were made, after which, without making findings of fact, conclusions or giving reasons for its action, it denied the challenge.

The estate and the developer appealed borough council's action to the Court of Common Pleas of Clarion County. As borough council had not made findings, the court made findings and concluded that the appellees, appellants below, had established that the borough by its zoning ...


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