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COUNCIL MIDDLETOWN TOWNSHIP v. ALICE S. BENHAM (08/16/85)

decided: August 16, 1985.

COUNCIL OF MIDDLETOWN TOWNSHIP, DELAWARE COUNTY, PENNSYLVANIA, APPELLANT
v.
ALICE S. BENHAM, CO-EXECUTRIX AND MARY CHRISTINE MORAN, CO-EXECUTRIX OF THE ESTATE OF GRANT J. BENHAM, APPELLEE. ALICE S. BENHAM, CO-EXECUTRIX AND MARY CHRISTINE MORAN, CO-EXECUTRIX OF THE ESTATE OF GRANT J. BENHAM, APPELLANT V. COUNCIL OF MIDDLETOWN TOWNSHIP, DELAWARE COUNTY, PENNSYLVANIA, APPELLEE



Appeals from the Order of the Court of Common Pleas of Delaware County in the case of Grant J. Benham v. Council of Middletown Township, Delaware County, Pennsylvania, No. 79-17771.

COUNSEL

Robert B. Surrick, Levy and Surrick, for appellant/appellee, Council of Middletown Township, Delaware County, Pennsylvania.

Vincent B. Mancini, Kassab, Cherry & Archbold, for appellant/appellee, Alice S. Benham, Co-Executrix and Mary Christine Moran, Co-Executrix of the Estate of Grant J. Benham.

Judge Craig, and Senior Judges Blatt and Barbieri, sitting as a panel of three. Opinion by Judge Craig. Judge Williams, Jr., did not participate in the decision in this case. Judge Doyle did not participate in the decision.

Author: Craig

[ 91 Pa. Commw. Page 187]

The Council of Middletown Township (council) (Appeal No. 1269 C.D. 1982) and the Estate of Grant

[ 91 Pa. Commw. Page 188]

J. Benham (developer) (Appeal No. 1305 C.D. 1982) cross-appeal from an order of the Court of Common Pleas of Delaware County which: (1) sustained the developer's substantive challenge to the validity of two sections of the Middletown Township Code of Ordinances;*fn1 (2) reversed the council's decision to deny the developer's application for tentative approval of a planned residential development (PRD) consisting of 113 units; and (3) granted tentative approval for a PRD consisting of 86 units.*fn2

The central issue in the council's appeal concerns the meaning and validity of the zoning ordinance requirement that all PRDs must be serviced by a "public sanitary sewer systems." The developer's cross-appeal questions the trial court's conclusion that a railroad right-of-way constitutes a "public way" dividing the development tract so that maximum density compliance must be attained independently within each of the divisions.

The developer owns approximately 104.2 acres located in Middletown Township, Delaware County, Pennsylvania and zoned R-1A.*fn3 In his application for tentative approval of a PRD, he proposed a project

[ 91 Pa. Commw. Page 189]

    consisting of 82 townhouse units and 31 single-family units which would be serviced by an on-site sewage package treatment plant, operation of which would result in the discharge of treated sewage into Chester Creek. The council denied the application.

An appeal by the developer resulted in a remand by the court of common pleas for additional hearings. Thereafter, the developer initiated proceedings under sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of June 1, 1972, P.L. 805, as amended, 53 P.S. ยงยง 10609.1, 11004, challenging the validity of sections 309C(7) and 309H(2)(h) of the Code of Ordinances.

After numerous hearings, the council decided again to deny tentative approval of the developer's PRD application and to dismiss the curative amendment petition. Administrative Judge Prescott, of the court of common pleas, reversed the council and granted tentative approval of an 86-unit PRD, having concluded that the challenged sections were invalid. These cross-appeals ensued.

Because the trial court did not take any additional evidence, our scope of review is limited to determining whether or not the governing body, here the council, abused its discretion or committed an error of law. See G.M.P. Land Co., Inc. v. Board of Supervisors ...


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