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INCORPORATION BOROUGH TWO PONDS. TWO PONDS (01/30/85)

decided: January 30, 1985.

IN RE: INCORPORATION OF THE BOROUGH OF TWO PONDS. TWO PONDS, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County in the case of In Re: Incorporation of the Borough of Two Ponds, No. 39 M.M.-1983-11.

COUNSEL

Jerome R. Balka, with him, Edmond H. Heisler, Balka and Balka, for appellant.

Robert C. Steiger, for appellee, Township of Northampton.

Judges Rogers and Colins and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 87 Pa. Commw. Page 325]

Two Ponds, Inc., the owner of an eighty-seven acre parcel of largely undeveloped land in Northampton Township has appealed an order of the Court of Common Pleas of Bucks County dismissing its petition to incorporate the tract as a borough.

The appellant's land, upon which four tenants reside, is located in a zoning district of the Northampton Township where only single-family detached dwellings on one acre lots are permitted. In 1977, the Board of Supervisors of Northampton Township approved the appellant's application for the subdivision of the land into eight ten acre tracts and one two acre lot. The appellant did not proceed with this plan of development. Instead, it informally sought changes in the township's zoning ordinance which would permit

[ 87 Pa. Commw. Page 326]

    it to construct multi-family dwellings and commercial and professional buildings. The changes were not made.

In May, 1983, the appellant filed a petition for incorporation of its land as a borough. It then proposed after incorporation to construct three hundred condominium units, priced at from $100,000 to $1,000,000 each, which would be occupied by persons described by a witness for the appellant as of such a high income and intellectual level that mixing them with the present residents of the township would be like mixing "pepper and salt -- be hard to mesh with the existing community."

Over the objection of the appellant, the hearing judge declined to establish a Borough Advisory Committee, to which we will presently more fully refer. The hearing judge conducted an evidentiary hearing and then entered an order dismissing the petition for incorporation on the ground that the incorporation would disadvantage the remainder of the township and the persons residing there by subverting the existing zoning and planning codes. This consideration was one of the three factors, which this court has held should be considered, described in Canterbury Village, Inc. Appeal, 75 Pa. Commonwealth Ct. 334, 342, 462 A.2d 865, 870 (1983), as: (1) whether the area proposed for incorporation is one harmonious whole with common problems which can properly be served by borough government; (2) whether public services are to be provided by borough government; and (3) the one invoked by the hearing judge, whether the incorporation disadvantages the remaining township. Canterbury Village, Inc. Appeal and its progenitor Bear Creek Township v. Penn Lake Park Borough, 20 Pa. Commonwealth Ct. 77, 340 A.2d 642 (1975), involved proposed incorporations sought before the

[ 87 Pa. Commw. Page 327]

    amendments to Section 202 of the Borough Code, Act of February 1, 1966, P.L. (1965) 581, 53 P.S. § 45202, ...


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