Appeal from the Order of the Court of Common Pleas of Cumberland County, in the case of Claremont Properties, Inc. v. Board of Township Supervisors of Middlesex Township v. Richard J. Boyer and Margaret Boyer, his wife, David D. Hukill and Sandra L. Hukill, his wife, Larry R. Clapsadl and Avonne C. Clapsadl, his wife, William L. Wessels and Mary Lou Wessels, his wife, Gail W. Jensik, and the Middlesex Action Committee, No. 2108 Civil 1986.
Charles B. Zwally, with him, Paula J. Leicht, Shearer, Mette, Evans & Woodside, for appellant.
Charles D. Vance, Jr., with him, Richard C. Snelbaker, Snelbaker, Elicker & Silver, for appellee.
Charles E. Zaleski, Tive, Hetrick & Pierce, P.C., for intervenors.
Judges Craig, and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 118 Pa. Commw. Page 529]
Claremont Properties, Inc. (Claremont) appeals from an order of the Court of Common Pleas of Cumberland County that (1) denied Claremont's motion to take additional evidence in its appeal to the court from a denial of Claremont's subdivision application by the Board of Township Supervisors of Middlesex Township and (2) dismissed Claremont's appeal.
The principal issue involved is whether a trial court may dismiss a subdivision appeal in the course of ruling on a motion to take additional evidence based upon the judge's recollection that the applicant's counsel conceded at oral argument on that motion that the application did not meet the requirements of the ordinance.
On May 5, 1986, Claremont submitted to the township supervisors a subdivision application in the form of a land development plan and supporting documentation for 15.15 acres of a site that Claremont owns in Middlesex Township. The plan proposed the construction of a truck terminal, storage facilities and an office building. Claremont later submitted additional engineering data pursuant to a request by the township's engineer.
When Claremont filed the application, the property was located in an industrial district under the township's zoning ordinance, and the proposed uses were permitted in such a district. As the result of an amendment to the zoning ordinance adopted by the township supervisors after Claremont filed its application, only residential and agricultural uses are now permitted for this property.
[ 118 Pa. Commw. Page 530]
After receiving planning commission recommendations, the township supervisors held a public meeting on July 2, 1986, and received unsworn comments both for and against the proposal. They then voted to deny approval of Claremont's application and issued a written decision on July 3, 1986. Claremont appealed to the court of common pleas. The court granted leave to intervene to a group of persons living near the proposed development who make up the Middlesex Action Committee.
On September 18, 1986, Claremont filed a Motion for a Hearing to Present Additional Evidence, answered by the appellee township supervisors and the intervenors. Counsel for Claremont and for the township supervisors argued the motion before the court of common pleas on December 10, 1986. On December 17, 1986, the court issued the order described above, both denying the motion for a hearing and dismissing the appeal. After discussing in detail the rationale for refusing to accept additional evidence, the opinion stated that because Claremont had conceded that its application did not meet the requirements of the township ordinance, there was no need to have the merits of the appeal listed and argued.
Claremont filed a petition for reconsideration on December 24, 1986, answered by the township supervisors and the intervenors. The petition averred, among other things, that Claremont had not conceded that its plan did not meet the requirements of the ordinance.
On January 15, 1987, Claremont filed a notice of appeal to the Commonwealth Court. The common pleas court judge who had dismissed the appeal issued a memorandum opinion on February 5, 1987, which stated that, although the judge specifically recalled Claremont's counsel's conceding at oral ...