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WILLIAM P. GRAHAM ET AL. v. ZONING HEARING BOARD UPPER ALLEN TOWNSHIP AND CLEPPER FARMS (08/12/86)

decided: August 12, 1986.

WILLIAM P. GRAHAM ET AL.
v.
ZONING HEARING BOARD OF UPPER ALLEN TOWNSHIP AND CLEPPER FARMS, INC. WILLIAM P. GRAHAM ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of William P. Graham et al. v. Zoning Hearing Board of Upper Allen Township and Clepper Farms, Inc., No. 1576 of 1984.

COUNSEL

Ronald M. Katzman, Goldberg, Katzman & Shipman, P.C., for appellants.

Dusan Bratic, for appellee, Hearing Board of Upper Allen Township.

William E. Miller, Jr., Keefer, Wood, Allen & Rahal, for appellee, Upper Allen Township.

John M. Eakin, with him, Fred H. Hait, Eakin & Eakin, for appellee, Clepper Farms, Inc.

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

Author: Craig

[ 99 Pa. Commw. Page 586]

William P. Graham and eight other landowners (Graham Group) appeal from an order of the Court of Common Pleas of Cumberland County affirming a decision of the Zoning Hearing Board of Upper Allen Township which conditionally approved Clepper Farms, Inc.'s preliminary subdivision plan. We affirm.

On March 14, 1980, Clepper Farms submitted a preliminary subdivision plan to Upper Allen Township, and on May 19, 1980, the Township Planning Commission recommended that the plan, subject to certain conditions, be approved by the Board of Commissioners of Upper Allen Township. The board of commissioners on June 11, 1980 refused to approve the plan for the

[ 99 Pa. Commw. Page 587]

    reasons that were stated as conditions by the planning commission. On June 16, 1980, the board of commissioners notified Clepper Farms of the rejection and set forth the reasons for the rejection, but made no reference to the ordinance or statutory provisions violated by the plan.

Clepper Farms, on July 1, 1980, commenced a mandamus action in the Court of Common Pleas of Cumberland County seeking to compel approval of the plan because the board of commissioners failed to comply with the notice requirements of Section 508(2) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, art. V, as amended, 53 P.S. ยง 10508(2) (MPC). Section 508(2) requires the board of commissioners to cite the provisions of the statute or ordinance it relied upon in disapproving a subdivision plan.

The court of common pleas ordered that the plan be deemed approved subject to the conditions which had been recommended to the board of commissioners by the planning commission. Both Clepper Farms and the board of commissioners appealed from that order to this court. In Clepper Farms, Inc. v. Trimmer, 66 Pa. Commonwealth Ct. 326, 443 A.2d 1385 (1982), this court affirmed the trial court's deemed approval of the plan, but reversed the trial court's order insofar as it had subjected the plan to conditions because those conditions had not been embodied in any township approval nor accepted by the developer.

At the same time that Clepper Farms had filed the mandamus action, it also had filed a precautionary appeal with the court of common pleas pursuant to section 1006(1) of the MPC, challenging the merits of the board of commissioners' rejection of the plan. On July 10, 1980, the Graham Group filed a precautionary appeal with the zoning hearing board pursuant to section 1007 of the MPC based on the theory that if Clepper Farms

[ 99 Pa. Commw. Page 588]

    were successful in its mandamus action, the Graham Group would then become "persons aggrieved" by the deemed approval. In addition, the Graham Group and the township filed a precautionary appeal with the court of common pleas. The court of common pleas quashed that appeal and remanded the matter to the zoning hearing board for a hearing on the merits. Upper Allen Township v. Zoning Hearing Board of Upper Allen Township, 33 Cumb. 76 (C.P. Pa. 1982), aff'd, 77 Pa. Commonwealth Ct. 582, 466 A.2d 292 (1983).

After several hearings, the zoning hearing board found that the plan failed to comply with the ordinance requirements in ten respects, but nevertheless gave conditional approval to the plan by subjecting it to ten so-called "conditions" which spelled out how the plan should be revised to achieve compliance.*fn1 Clepper Farms appealed from that order to the court of common pleas which, after a hearing, the court affirmed. This appeal followed.

[ 99 Pa. Commw. Page 589]

The Graham Group raises five issues, as follows:

1. Whether the zoning hearing board had the authority to issue a conditional approval of the ...


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