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SHARON GLENNON v. ZONING HEARING BOARD LOWER MILFORD TOWNSHIP AND PLANNING COMMISSION LOWER MILFORD TOWNSHIP AND BOARD SUPERVISORS LOWER MILFORD TOWNSHIP (08/12/87)

decided: August 12, 1987.

SHARON GLENNON, APPELLANT
v.
ZONING HEARING BOARD OF LOWER MILFORD TOWNSHIP AND PLANNING COMMISSION OF LOWER MILFORD TOWNSHIP AND BOARD OF SUPERVISORS OF LOWER MILFORD TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lehigh County, in case of Sharon Glennon v. Zoning Hearing Board of Lower Milford Township -- Sharon Glennon v. Planning Commission of Lower Milford Township and Board of Supervisors of Lower Milford Township, No. 84-C-1823.

COUNSEL

Donald B. Smith, Jr., for appellant.

Edward H. McGee, for appellees.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 108 Pa. Commw. Page 372]

Sharon Glennon, Appellant, appeals here an order of the Court of Common Pleas of Lehigh County denying her appeals from orders of the Lower Milford Township Planning Commission (Commission) and the Lower Milford

[ 108 Pa. Commw. Page 373]

Township Zoning Hearing Board (Board). The Commission denied her subdivision application and the Board her applications for a building permit and a variance. We shall affirm.

Glennon purchased a 5.42 acre lot in Lower Milford Township, Lehigh County, in 1984. That lot was part of a much larger parcel that was partitioned off in 1977 through a tax sale. The lot is located in an agricultural zone in which single family residences are a permitted use. Access to Glennon's lot is only through Elm Road, an unimproved private road that is fourteen feet wide at its widest point. Elm Road was a public road at one time but was vacated by the Township in 1960 by a duly adopted ordinance. Glennon had applied to the Commission for approval to subdivide her 5.42 acre lot into two building lots. The Commission denied her application. She also applied for a building permit to construct a single family residence on the lot. The zoning officer denied the building permit on the basis that the lot does not front on a public road or an approved private street as required by Section 733.2 of the Lower Milford Township Zoning Ordinance (Ordinance).*fn1 Elm Road is not considered by the Township to be an "approved private street" within the meaning of Section 733.2 of the Ordinance. Glennon appealed the zoning officer's denial to the Board in which she asserted that Elm Road was an approved road and also pressed an alternative claim that she was entitled to a variance from Section 733.2's requirement on the basis of an undue hardship. The Board denied both applications.

[ 108 Pa. Commw. Page 374]

Glennon then appealed the decisions of the Commission and the Board to common pleas court. The common pleas court consolidated the appeals and affirmed the decisions of the Commission and the Board. Appeal to this Court followed.

In this appeal, Glennon raises numerous assignments of error on the part of the Commission and Board that we shall consider in turn. We are also cognizant that our scope of review, where the common pleas court did not take any additional evidence, is limited by Section 754(b) of the Local Agency Law, 2 Pa. C.S. ยง 754(b), to determining whether necessary findings made by the Commission or the Board are supported by substantial evidence, an error of law was committed, or whether any constitutional right of Glennon was violated. Pilot Oil Corporation v. Zoning Hearing Board of West Hanover Township, 86 Pa. Commonwealth Ct. 23, 483 A.2d 1049 (1984).

Glennon's initial contention is that the Board and Commission erred in finding that Elm Road was not an "approved private street" within the meaning of Section 733.2 of the Ordinance. She bases this argument on the fact that Elm Road was once a public road and was specifically vacated and declared to be a private road. Since Elm Road was once part of the public roadway system of the Township, she argues, it must qualify as an "approved private street" within the meaning of Section 733.2 of the Ordinance ...


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