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FRED C. KRESGE v. POCONO TOWNSHIP SUPERVISORS (12/10/85)

decided: December 10, 1985.

FRED C. KRESGE, JR. AND MARILYN L. KRESGE, HIS WIFE, APPELLANTS
v.
POCONO TOWNSHIP SUPERVISORS, MONROE COUNTY, PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Monroe County in case of Fred C. Kresge, Jr., and Marilyn L. Kresge, his wife v. Pocono Township Supervisors, Monroe County, Pennsylvania, No. 33 Civil, 1978.

COUNSEL

James V. Fareri, with him, Ronald J. Mishkin, Mervine, Brown, Newman, Williams and Mishkin, P.C., for appellants.

George W. Westervelt, Jr., with him, George Royal IV, for appellee.

Judges Rogers and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 93 Pa. Commw. Page 385]

This is the appeal of Fred C. Kresge and Marilyn Kresge, husband and wife (Kresges), from an order of the Court of Common Pleas of Monroe County affirming a decision of the Pocono Township Board of Supervisors (board) denying the Kresges' request for a curative amendment to the Pocono Township Zoning Ordinance.

Alleging exclusionary zoning, the Kresges filed a request for a curative amendment to the Pocono Township Zoning Ordinance pursuant to Sections 609.1 and 1004(1)(b) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยงยง 10609.1, 11004(1)(b). The effect of the amendment would be to reduce the lot size requirement of the ordinance from one acre to one-third acre per

[ 93 Pa. Commw. Page 386]

    dwelling unit in the R-1 and R-2 districts, enabling the Kresges to construct a thirty-unit townhouse development on their ten acre tract. After hearings, the board denied the Kresges' request.

On appeal, the Court of Common Pleas of Monroe County affirmed the board's decision.

The Kresges here state two questions: (1) whether the Pocono Township Zoning Ordinance, imposing the one-acre lot size requirement, is constitutionally invalid as exclusionary; and (2) whether the appellants were denied due process because of the activities of the township solicitor in the supervisors' hearing.

Since we find that the Kresges were denied due process by the proceedings below, we need not reach the issue of the validity of the ordinance.

At the board's hearings, the Pocono Township solicitor produced and examined township witnesses and offered in evidence documents in support of the reasonableness of the disputed requirement; he ruled on the Kresges' objections to evidence; he cross-examined Kresges' witnesses; he gave legal advice to the board during and after the hearings; and he drafted the board's ...


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