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RAYMOND RUSSO v. ZONING HEARING BOARD PERKIOMEN TOWNSHIP AND PERKIOMEN TOWNSHIP BOARD SUPERVISORS AND CRANBERRY CORPORATION (11/26/84)

decided: November 26, 1984.

RAYMOND RUSSO, APPELLANT
v.
ZONING HEARING BOARD OF PERKIOMEN TOWNSHIP AND PERKIOMEN TOWNSHIP BOARD OF SUPERVISORS AND CRANBERRY CORPORATION, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Raymond Russo v. Zoning Hearing Board of Perkiomen Township and Perkiomen Township Board of Supervisors and Cranberry Corporation, No. 83-7806.

COUNSEL

Marc D. Jonas, for appellant.

Frank R. Bartle, Dischell, Bartle & Yanoff Associates, P.C., for appellee, Zoning Hearing Board of Perkiomen Township.

John F. Walsh, Philip R. Detwiler & Associates, for appellee, Perkiomen Township Board of Supervisors.

James J. Heffernen, for appellee, Cranberry Corporation.

Judges Williams, Jr., Barry and Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 86 Pa. Commw. Page 139]

This appeal results from an order of the Court of Common Pleas of Montgomery County, affirming an order of the Zoning Hearing Board of Perkiomen Township (Board) which had dismissed an appeal of appellant Raymond Russo from a decision of Perkiomen Township Board of Supervisors (Supervisors) who had granted tentative approval to a residential development plan of appellee Cranberry Corporation (Cranberry).

Cranberry, which owns a 240 acre tract of land in Perkiomen Township, made an application in December, 1976, for a Planned Residential Development (PRD) on that tract. Following a number of public hearings, the Supervisors denied the application in September, 1978. Cranberry appealed to the Court of Common Pleas of Montgomery County as required by Section 1006 of the Municipalities Planning Code (MPC), Act of June 1, 1972, P.L. , 53 P.S. ยง 11006. The court remanded the matter to the Supervisors for findings of fact and conclusions of law as required by Section 709 of the MPC.

Following the remand, the Supervisors held a public hearing, after which they granted tentative approval with conditions on April 10, 1979. As Cranberry was unwilling to accept the conditions, it treated the approval with conditions as a denial, Section 709(a)(3) of the MPC, and again appealed to the court of common pleas on April 19, 1979. Appellant, alleging he was aggrieved by the tentative approval with conditions, appealed to the Board, pursuant to Section 1007 of the MPC, on May 9, 1979. On June 6, 1979, the Zoning Hearing Board filed a petition for

[ 86 Pa. Commw. Page 140]

    declaratory judgment in the court of common pleas. In its petition, the Board alleged it had no jurisdiction because of Cranberry's April 19 appeal to the court of common pleas. Further, the Board stated its belief that because the controversy was based on the same facts as Cranberry's appeal, appellant should intervene in Cranberry's appeal to protect his rights. Appellant, however, never sought intervention. Rather, on July 11, 1979, he filed a complaint in mandamus, requesting a court order compelling the Board to entertain his appeal. The petition for declaratory judgment and the complaint in mandamus were consolidated for argument; both are still pending.

On October 19, 1979, the court of common pleas dismissed Cranberry's appeal from the Supervisors' granting of tentative approval with conditions. Section 709(a)(3) requires a developer to notify the governing body that he or she is rejecting some of the conditions imposed, thereby allowing the developer to treat the approval with conditions as a denial which can be appealed. Cranberry never informed the Supervisors of its rejection of some of the conditions; rather Cranberry simply appealed to the court of common pleas which held that filing an appeal does not relieve a developer of the duty to notify the governing body that certain conditions are rejected. As Cranberry failed to do so, ...


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