Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of FPA Corporation from the Decision of the Newtown Zoning Hearing Board, No. 74-3124-13-5.
Stephen B. Harris, Harris and Harris, for appellant.
Richard P. McBride, McBride and Murphy, for appellee.
Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Doyle.
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This is an appeal of an order of the Court of Common Pleas of Bucks County directing the Newtown Township Board of Supervisors (Board) to provide the FPA Corporation with "any and all development agreements and other documentation required as a condition precedent to the issuance of permits, and thereafter cooperate with FPA Corporation in all acts necessary for the issuance of building permits for all or any portion of the 272 dwelling units previously approved by the Township."
This case has been in litigation for nearly a decade and, unfortunately, a somewhat lengthy history of the case will be necessary. On June 30, 1972 FPA filed an application for a zoning permit to construct a project termed "Golden Acres." The project proposed
[ 86 Pa. Commw. Page 444]
the construction of single family residences, senior citizen units, multi-family uses, apartments and townhouses. At the time the application was filed the only permitted residential use under the Newtown Township Zoning Ordinance was single family dwellings on lots containing at least 40,000 square feet. FPA raised a constitutional challenge to the exclusionary zoning ordinance and the Honorable Arthur B. Walsh, Jr., issued an order, dated June 28, 1975, declaring the ordinance unconstitutional and remanding the case to the Board for further proceedings with respect to other sources of Township control. FPA Corporation v. Newtown Township, 27 Bucks 146 (1975). This Court upheld Judge Walsh's order. FPA Corporation Appeal, 25 Pa. Commonwealth Ct. 221, 360 A.2d 851 (1976).
The parties then entered into a written agreement which was incorporated into the June 28, 1975 order of the court by a subsequent order entered on October 5, 1977, and which had the effect of thus modifying the June order. The October 5, 1977 modified order provided in pertinent part:
3. The Board and FPA, being desirous of realizing sound and orderly development of the property without arbitrary or artificial time constraints upon the completion and sale of dwelling units in any stage, agree that no subsequent changes in zoning, planned residential development, subdivision, land development or other ordinances of Newtown Township shall impair or alter the right of FPA its successors and assigns to develop the subject property under and pursuant to the terms of this agreement and as reflected upon Exhibit "A" attached hereto, without regard to the number of years that are required to develop the subject property, unless and until the terms of development
[ 86 Pa. Commw. Page 445]
are subsequently modified by written agreement by and ...