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BOUNDARY DRIVE ASSOCIATES v. SHREWSBURY TOWNSHIP BOARD SUPERVISORS ET AL. (03/09/84)

decided: March 9, 1984.

BOUNDARY DRIVE ASSOCIATES, APPELLANT
v.
SHREWSBURY TOWNSHIP BOARD OF SUPERVISORS ET AL., APPELLEES. BOUNDARY DRIVE ASSOCIATES V. SHREWSBURY TOWNSHIP BOARD OF SUPERVISORS ET AL. SHREWSBURY TOWNSHIP BOARD OF SUPERVISORS, APPELLANT



Appeals from the Order of the Court of Common Pleas of York County in case of Boundary Drive Associates v. Shrewsbury Township Board of Supervisors and Shrewsbury Township Zoning Hearing Board, No. 81-S-2063.

COUNSEL

Edward B. Golla, for appellant/appellee, Boundary Drive Associates.

Gilbert G. Malone, for appellant/appellee, Shrewsbury Township Board of Supervisors.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Craig.

Author: Craig

[ 81 Pa. Commw. Page 8]

Boundary Drive Associates appeals from an order of the Court of Common Pleas of York County, which affirmed a decision of the Shrewsbury Township

[ 81 Pa. Commw. Page 9]

Zoning Hearing Board denying Boundary a variance and rejecting its challenge to the validity of portions of the township's zoning ordinance. The issues for our review are whether the board erred in denying the "validity variance" or in rejecting the challenge to the validity of the agricultural zoning provisions of the ordinance, and whether the ordinance section governing fees is valid.

In 1975, when the township had no zoning ordinance, Boundary purchased a 43-acre tract of prime farm land. Boundary filed a 72-lot subdivision plan which, in accordance with a subdivision land development ordinance, proposed connection to a public sewer system; the plan was deemed approved as of July 25, 1976, because of the township's failure to act.*fn1 In November, 1976, the township passed its first zoning ordinance, classifying Boundary's land as A-Agricultural. Upon Boundary's request, the township formally approved its subdivision plan on September 6, 1978, specifically stating that the township would not assist Boundary in securing sewer service.

No further action was taken on Boundary's 1976 plan, and, pursuant to a second plan, approved and filed in 1979, Boundary subdivided and sold three one-acre lots. In October, 1980 Boundary filed a request for a "validity variance" and a challenge to the validity of the agricultural zoning provisions (§§ 5.00-5.04(9)) and the fee provision (§ 14.30) of the ordinance. With that challenge, Boundary also filed a proposed third subdivision plan, which would divide the tract into 67 lots having on-site septic systems.

[ 81 Pa. Commw. Page 10]

The board denied the requested "validity variance" and upheld those sections of the zoning ordinance which affected Boundary's proposal, specifically §§ 5.03(1), 5.04(1), 5.04(4) and 14.30. On appeal, the trial court, in a thorough and careful opinion by Judge John T. Miller, affirmed the board on the variance and agricultural zoning issues, but concluded that a portion of § 14.30, the fee provision, was invalid.

"Validity Variance"

In support of its requested "validity variance", Boundary contends that, because the township attached the statement concerning sewer service to its approval of Boundary's first subdivision plan, the result was a defacto amendment to the township zoning map, placing Boundary's property in a unique residential zone. The board erred, Boundary argues, by refusing to grant a "validity variance" from ...


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