Appeal from the Order of the Court of Common Pleas of Monroe County, in the case of Cherry Valley Associates v. Stroud Township Board of Supervisors, Nos. 1809 & 2779-1985.
Mark P. Pazuhanich, Hanna, Young & Upright, for appellant.
Thomas E. Fasching, with him, Bernard M. Billick, Robinson, Hoffner & Billick, for Appellee.
Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.
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Cherry Valley Associates (CVA) appeals from a decision of the Court of Common Pleas of Monroe County (trial court) which affirmed the decision of the Board of Supervisors of Stroud Township (Board) denying CVA's request for preliminary approval of a Planned Unit Development (PUD) and a conditional use permit for such development. CVA also appeals the portion of the trial court's decision which remanded to the Board, for review, the Board's denial of CVA's revised applications for approval of a PUD.
CVA, a partnership of Gene Paul Percudani and Vintage Homes, Inc., owns approximately 190 acres of property with 30 acres in Smithfield Township and approximately 160 acres in Stroud Township (Township). At all times relevant to this case, the property in question was zoned S-1, a special or conservation district.*fn1 In February of 1985, CVA filed with the Board a formal application seeking: 1) preliminary approval of the PUD,
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encompassing the construction of 250 townhouses; 2) a conditional use permit for the development; and 3) final approval of Stage 1 of the PUD. CVA's application was filed pursuant to two Stroud Township ordinances, namely, the Stroud Township Zoning Ordinance (Zoning Ordinance), which allows PUDs as a conditional use in an S-1 district, and the Stroud Township Subdivision Ordinance (Subdivision Ordinance), which regulates the subdivision and development of land within Stroud Township.
Pursuant to the Zoning Ordinance and Subdivision Ordinance, CVA's application was referred to the Stroud Township Planning Commission (Commission) for review.*fn2 The Commission reviewed CVA's applications at several public hearings, following which the Commission recommended approval of the plan. Thereafter, two public hearings were held before the Board. After the Board had advertised the first public hearing on CVA's proposal, but before the hearing took place, CVA deleted its request for final approval of Stage 1 of the PUD. Following the public hearings, the Board denied CVA's application, noting a myriad of reasons that shall be discussed more fully later.
CVA appealed the denial to the trial court alleging that the Board erred in denying the application and that the Board had acted in bad faith and denied CVA due process. While its appeal to the trial court was pending, CVA submitted to the Board two revised applications to construct a PUD on the property in question. The revised applications called for the construction of 88 townhouses, with the right to expand to 250 townhouses. After
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reviewing the revised applications, the township engineer, by letter, recommended that the Commission deny the applications. Thereafter, the Commission recommended to the Board that it deny the second applications. Without holding any hearings, the Board denied the applications, adopting as its reasoning the letter from the township engineer to the Commission. CVA appealed the second denial to the trial court.*fn3
CVA's appeals were consolidated, and the trial court accepted additional evidence on the limited issues of whether the Board had acted in bad faith or denied CVA due process. The trial court determined that the Board had not acted in bad faith or denied CVA due process. With regard to the merits of the Board's denial of CVA's applications, the trial court affirmed the Board's denial of CVA's original application, and remanded to the Board its denial of the revised applications. CVA has appealed to this court all aspects of the trial court's decision.
We begin by noting that the portion of the trial court order remanding to the Board is clearly interlocutory and therefore not appealable. Municipality of Bethel Park Appeal, 51 Pa. Commonwealth Ct. 128, 414 A.2d 401 (1980). Accordingly, that aspect of the trial court decision will not be further considered.
With regard to the original application, CVA asserts that the Board erred in: 1) relying on requirements not contained in the ordinances; 2) relying on requirements not applicable to a request for preliminary approval of a development; and 3) basing its denial on findings of non-compliance that are not supported by substantial
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evidence. In addition, CVA argues that the Board ...