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C. WILLIAM BROUGH v. HEIDELBERG TOWNSHIP BOARD SUPERVISORS (01/30/89)

decided: January 30, 1989.

C. WILLIAM BROUGH
v.
HEIDELBERG TOWNSHIP BOARD OF SUPERVISORS, YORK COUNTY, PA. HEIDELBERG TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of York County, Pennsylvania, in the case of C. William Brough v. Heidelberg Township Board of Supervisors, York County, Pa., No. 87-SU-00019-08.

COUNSEL

James T. Yingst, with him, G. Steven McKonly, Buchen, Wise, Dorr & McKonly, for appellant.

Daniel M. Frey, Crabbs and Frey, for appellee.

Judges Craig, Barry and McGinley, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case.

Author: Mcginley

[ 123 Pa. Commw. Page 213]

Heidelberg Township Board of Supervisors (Supervisors) appeal an order of the Court of Common Pleas of York County (Court of Common Pleas) reversing an order of the Supervisors which denied the application for subdivision of C. William Brough (Brough) for failure to meet the requirements of Section 509(b) of the Heidelberg Township Subdivision and Land Development Ordinance (Ordinance).*fn1 The Court of Common Pleas held that the application of the ordinance to Brough's property constituted an unlawful deprivation of property without compensation and ordered the Supervisors to approve Brough's proposed subdivision plan. The Supervisors have appealed this order.

On January 14, 1972, Brough acquired a tract of land containing approximately 58 acres located in Penn Township and Heidelberg Township, York County, Pennsylvania. The effective date of the Ordinance is December 27, 1977. On May 7, 1986, Brough received approval to subdivide the tract into a parcel consisting of 24 acres and a parcel consisting of 34 acres and then presented a

[ 123 Pa. Commw. Page 214]

    subdivision plan for the 34 acres. Next, on September 10, 1986, Brough presented a subdivision plan for the 34 acre parcel, consisting of six proposed lots,*fn2 to the Heidelberg Township Planning Commission (Commission). Brough also submitted the plan to the Heidelberg Township Zoning Hearing Board (Board) and requested a variance from the ordinance requirement that all lots front on a public street or an improved private street. The Board advised Brough that a zoning variance was not required and sent him to the Supervisors for subdivision approval. The Supervisors considered the plan during a public meeting held December 3, 1986. By letter dated December 5, 1986, Brough was notified that the Supervisors refused to approve the subdivision plan. Brough appealed. The Court of Common Pleas received no additional evidence. On September 22, 1987, it reversed the Supervisors and ordered approval of the subdivision plan.

On appeal the Supervisors argue that: Brough was provided with adequate and proper notice of the denial of approval of his subdivision plan in accordance with Section 508 of the Pennsylvania Municipalities Planning Code (MPC);*fn3 that the refusal of approval, even though contrary to the Board determination that no zoning variance was required, was not an abuse of discretion; and, finally, that the denial of approval of Brough's subdivision plan was in accordance with the terms of the ordinance and that said denial does not result in an unconstitutional deprivation of Brough's property without compensation.

[ 123 Pa. Commw. Page 215]

Since the Court below received no additional evidence, our scope of review is limited to determining whether or not the Supervisor's findings are supported by substantial evidence, and whether or not an error of law or abuse of discretion was committed in denying approval of Brough's revised subdivision plan. Bensalem Township v. Blank, 115 Pa. Commonwealth Ct. 281, 539 A.2d 948 (1988).

The procedure for approval/disapproval of subdivision plans is set forth in Section 508 of the MPC. Subsection (1) requires that the decision of the Supervisors shall be in writing and shall be communicated to the applicant personally or mailed to him at his last known address within 15 days of the decision. The notice provision of Section 306 of the ordinance is actually more demanding than the MPC and requires the Supervisors to mail notice within 5 days of the decision. The Supervisors complied with the MPC and the ...


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