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BOROUGH FRANKLIN PARK v. ATLAS DEVELOPMENT COMPANY AND J. RICHARD PORTER AND ELIZABETH PORTER (08/29/85)

decided: August 29, 1985.

BOROUGH OF FRANKLIN PARK, APPELLANT
v.
ATLAS DEVELOPMENT COMPANY AND J. RICHARD PORTER AND ELIZABETH PORTER, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Atlas Development Company and J. Richard Porter and Elizabeth Porter, his wife v. Borough of Franklin Park, No. SA 635 of 1983.

COUNSEL

William W. Milnes, Brandt, Milnes & Rea, for appellant.

James H. Joseph, James H. Joseph, P.C., for appellees.

Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 91 Pa. Commw. Page 418]

The Borough of Franklin Park (Borough) appeals the order of the Court of Common Pleas of Allegheny County sustaining the appeal of Atlas Development Company (Atlas) and J. Richard Porter and Elizabeth Porter (the Porters) from the decision of the Borough Council to reject Atlas' preliminary subdivision plan (Plan). The trial court's order further required that Atlas' Plan not be rejected for failure to

[ 91 Pa. Commw. Page 419]

    comply with certain conditions imposed by the Borough Council.

At the time that Atlas submitted its Plan to Borough Council, it was the equitable owner of a tract of land (Porter property) located within the Borough under an agreement of sale with the Porters. This tract is slightly more than five acres and contains a single family dwelling which was used by the Porters as their residence. The Porter property lies in the northeastern corner of the Borough and it is bounded on the west by Cole Road, a Borough street which runs generally in a north-south direction; on the east by the political boundary line dividing the Borough from Pine Township; on the north by a property owned by a Mr. and Mrs. Workman (Workman property) and on the south by a property owned by a Mr. and Mrs. Winner (Winner property). The Porter property is in an R-2 Residential District under the Borough's zoning ordinance.

Directly across the political boundary from the Porter property, Atlas also owns a ninety-three acre tract in Pine Township which it intends to develop both commercially as a shopping center, and residentially for townhouses of up to 240 units on a twenty-one acre section which most immediately abuts the Porter property. According to the Plan, Atlas proposes to build seven single family residences, a use permitted in the R-2 district, together with a public street, designated on the Plan as Village Drive, which will be situate in an east-west direction and is intended to communicate with the townhouse project. Village Drive to Cole Road is the only planned access to the townhouses because access to the remaining seventy-two acres of Atlas' Pine Township property is impeded by a ravine between the proposed sites of the townhouse project and the commercial development,

[ 91 Pa. Commw. Page 420]

    which in Atlas' opinion renders such access economically infeasible.

After Atlas remedied certain technical violations of the Borough's subdivision ordinance (Ordinance), the Borough Planning Commission approved the Plan and transmitted it to Borough Council. On August 17, 1983, Borough Council, after appropriate public notice, convened a public meeting to consider the Plan. At the conclusion of that meeting, the Borough Council approved the Plan subject to the following conditions:*fn1

1. That Village Drive as shown on said plan be designed to cul-de-sac [sic] at the Easterly [sic] terminus thereof and the preliminary subdivision ...


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