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FRANK J. NASCONE ET AL. v. ROSS TOWNSHIP ZONING HEARING BOARD ET AL. (04/11/84)

decided: April 11, 1984.

FRANK J. NASCONE ET AL., APPELLANTS
v.
ROSS TOWNSHIP ZONING HEARING BOARD ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Appeal of Frank J. Nascone and Ross Park Center, Inc. v. Ross Township Zoning Hearing Board and Herbert L. Berie and Nancy Rose Berie, his wife; Calvin D. Biesecker and Violet Smith Biesecker, his wife; Mary Jane Call; James V. Campana and Margaret Y. Campana, his wife; Harry Coon, Jr. and Lois M. Coon, his wife; Frederick J. Crowley and Kimberly A. Crowley, his wife; James P. DeMas and Elan A. DeMas, his wife; Robert V. Dunlavy and Effie M. Dunlavy, his wife; William F. Fried and Joanne W. Fried, his wife; Robert H. Heck and Carol E. Heck, his wife; Thomas A. Isaly and June V. Isaly, his wife; Curtis G. Kelly and Sandra R. Kelly, his wife; Thomas D. Kohr and Janette H. Kohr, his wife; Peter C. Longjohn and Elaine A. Longjohn, his wife; Gary S. Milliken and Beth H. Milliken, his wife; George W. Moore and Dorothy B. Moore, his wife; Mary A. Powell; Irwin G. Reese and Judith A. Reese, his wife; William E. Siegmann and Lois P. Siegmann, his wife; John J. Sismour and Rose Mary E. Sismour, his wife; Stephen M. Spragale and Delores C. Spragale, his wife; Thomas W. Taylor and June R. Taylor, his wife; Charles J. Thompson and Marian J. Thompson, his wife; William E. Trischler and Juliann K. Trischer, his wife; Norbert J. Weidner and Mary Alice Weidner, his wife; Thomas K. Weller and Betty Lou Weller, his wife, No. SA 460 of 1982, dated March 15, 1983.

COUNSEL

Frederick A. Boehm, with him Patrick J. Clair, Goehring, Rutter & Boehm, for appellants.

James W. Dunn, Jr., for appellees, Herbert L. and Nancy Rose Berie, his wife et al.

John M. Means, Markel, Schafer & Means, P.A., for appellee, Ross Township Zoning Hearing Board.

President Judge Crumlish, Jr. and Judges Barry and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 81 Pa. Commw. Page 484]

Nascone appeals an Allegheny County Common Pleas Court's affirmance of a decision of the Ross Township Zoning Hearing Board which had reversed the Township Commissioners' approval of Nascone's shopping mall development plan. We affirm.

Nascone submitted an application for site plan approval of a proposed shopping mall to the Township Planning Commission on November 19, 1981, pursuant to the Ross Township Subdivision and Land Development Ordinance (Development Ordinance). The property consists of 168 acres fronting on McKnight Road, Ross Township, Allegheny County, whose use as a shopping mall is expressly permitted under its C-1 Zoning -- "Highway Commercial District."*fn1

[ 81 Pa. Commw. Page 485]

Prior to the Planning Commission's official action on the preliminary plat, the Township Commissioners, in a separate action,*fn2 voted on December 14, 1981, to accept from Nascone a dedication of a deed for street purposes, which provided for a development agreement for future improvements of the right-of-way. The agreement provided that the dedicated street would be an access road to the site plan under consideration. The dedicated street (Road A) was to connect McIntyre Road with the proposed mall. McIntyre Road runs behind the proposed mall through a residential area.

On January 27, 1982, the Planning Commission recommended acceptance of the proposed shopping mall plan to the Township Commissioners subject to the condition that McKnight Road be the only access.*fn3 On February 9, 1982, the Township Commissioners voted to accept the final plan for the subdivision subject to certain screening conditions, but rejected the Planning Commission's recommendation that McKnight Road be the only access road. The rejection of the Planning Commission's recommendation was apparently made on the assumption that the Township was bound to permit access by reason of the separate acceptance of the deed of dedication.

A group of property owners appealed the decision, and the Zoning Hearing Board reversed the Commissioners' approval ...


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