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NORMAN SEIP AND MARGARET SEIP v. MILLCREEK TOWNSHIP SUPERVISORS AND MILLCREEK TOWNSHIP PLANNING COMMISSION (07/25/88)

decided: July 25, 1988.

NORMAN SEIP AND MARGARET SEIP, HIS WIFE, APPELLANTS
v.
THE MILLCREEK TOWNSHIP SUPERVISORS AND THE MILLCREEK TOWNSHIP PLANNING COMMISSION, ERIE COUNTY, PENNSYLVANIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Erie County, in the case of Norman Seip and Margaret Seip, his wife v. The Millcreek Township Supervisors and The Millcreek Township Planning Commission, Erie County, Pennsylvania, No. 4094-A-1985.

COUNSEL

Lawrence C. Bolla, with him, Michael S. Jan Janin, Quinn, Gent, Buseck and Leemhuis, Inc., for appellants.

Charles K. Moffatt, Carney & Good, for appellees.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail. Judge Colins dissents.

Author: Macphail

[ 118 Pa. Commw. Page 147]

Norman and Margaret Seip (Appellants) appeal an order of the Erie County Court of Common Pleas denying their motion for summary judgment and entering judgment for the Millcreek Township Supervisors and the Millcreek Township Planning Commission (Appellees).*fn1 We affirm.

Appellants own a 4.235 acre tract of land in Millcreek Township, Erie County. In September of 1985, Appellants submitted a subdivision plan to the Planning Commission, seeking to divide the tract into two lots,

[ 118 Pa. Commw. Page 148]

    one of approximately 1.235 acres and one of 3 acres. The Planning Commission recommended denial of the proposed subdivision, and, on October 14, 1985, the matter was heard by the Township Supervisors. Appellants' subdivision was subsequently denied by the Supervisors because the proposed lots did not have sufficient frontage on a public road.

On November 13, 1985, Appellants filed a notice of appeal with the common pleas court, pursuant to Section 1006 of the Pennsylvania Municipalities Planning Code (MPC),*fn2 53 P.S. ยง 11006. Appellants argued before the trial court that, inter alia, they are entitled to a variance, pursuant to the Millcreek Township Subdivision Ordinance (Ordinance), from the requirement that their lots front on a public road. The trial court concluded that Appellants did not prove that unnecessary hardship would result if the Ordinance is applied to their property, and consequently, granted summary judgment for Appellees. This appeal ensued.

Appellants argue here that the trial court erred, as a matter of law, in denying summary judgment as to their request for a variance from the Ordinance when unique and undue hardship, including economic hardship, would result. Our scope of review, where the trial court has taken additional evidence, is to determine whether the court committed an abuse of discretion or an error of law. Saber v. Zoning Hearing Board of the Borough of Roaring Spring, 106 Pa. Commonwealth Ct. 389, 526 A.2d 464 (1987).

Appellees' denial of Appellants' subdivision plan was based on Article III, Section 1 of the Ordinance, ...


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