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WILLIAM P. GRAHAM v. ZONING HEARING BOARD UPPER ALLEN TOWNSHIP AND CLEPPER FARMS (03/06/89)

decided: March 6, 1989.

WILLIAM P. GRAHAM, SUSAN GRAHAM, EDWARD F. LAFOND, VIRGINIA LAFOND, DAVID A. STACKS, WENDY A. STACKS, JOSEPH BITTENBENDER, CHARLES BERNATH, AND KAREN BERNATH, APPELLANTS,
v.
ZONING HEARING BOARD OF UPPER ALLEN TOWNSHIP AND CLEPPER FARMS, INC., APPELLEES, UPPER ALLEN TOWNSHIP, INTERVENOR



Appeal from the Order of the Commonwealth Court of Pennsylvania at Docket No. 1756 CD 1985, dated August 12, 1986, affirming the Order of the Court of Common Pleas of Cumberland County at Docket No. 1576 Civil 1984, dated February 13, and May 31, 1985

COUNSEL

Ronald M. Katzman, Harrisburg, for appellants.

John M. Eakin, Mechanicsburg, Dusan Bratic, Dillsburg, for appellees.

William E. Miller, Jr., Harrisburg, for intervenor.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., concurs in the result. McDermott, J., dissents.

Author: Zappala

[ 520 Pa. Page 528]

OPINION

This appeal presents an important question of first impression regarding the powers of a zoning hearing board to sustain the action of the municipality's governing body granting approval of a subdivision plan, subject to compliance with zoning conditions,*fn1 under § 11007 of the Municipal Planning Code, Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, Art. I, as amended, 53 P.S. § 10101, et seq.

The relevant facts are not in dispute. On March 14, 1980, Clepper Farms, Inc. submitted to the Planning Commission a preliminary subdivision plan for a fifty-acre tract of land situated in Upper Allen Township, Cumberland County. After a public hearing before the Planning Commission, the Commission recommended approval of the plan subject to eighteen conditions. The approval of the original plan was placed before the Township Board of Commissioners (Board) on June 11, 1980. At that time, the Board rejected the plan encompassing the Planning Commission's recommendations as well as the plan as originally submitted by Clepper Farms, Inc. On June 16, 1980, the Board formally

[ 520 Pa. Page 529]

    notified Clepper Farms, Inc. of the rejection of the plan without properly advising it of the ordinance violations which the proposed plan violated, as required under § 508(2) of the Code, 53 P.S. § 10508(2). Clepper Farms, Inc. then commenced a mandamus action seeking to compel approval of the plan, as originally submitted by Clepper Farms, Inc. without any conditions, due to the Board of Commissioner's non-compliance with § 508(2). The trial court ordered the approval of the plan subject to the conditions initially proposed to the Township Commissioners by the Planning Commission. Both Clepper Farms, Inc. and the Board of Commissioners appealed to Commonwealth Court which upheld only that part of the lower court's order determining that the plan was deemed approved because of the Township Commissioner's omission in notifying Clepper Farms, Inc. of the specific ordinance violations. In other words, Commonwealth Court approved the plan as originally submitted by Clepper Farms, Inc. See Clepper Farms, Inc. v. Trimmer, 66 Pa. Commw. 326, 443 A.2d 1385 (1982).

At the same time as it was pursuing its initial appeal from the Board's decision of June 16, 1980 rejecting it's plan, Clepper Farms, Inc. filed a precautionary appeal to the Court of Common Pleas from the Board's action on the preliminary plan. Likewise, the Appellants (Graham Group), and the Township filed precautionary appeals to the Court of Common Pleas. Clepper Farms, Inc. appealed the rejection of the plan while the Graham Group and Township challenged the possibility that the plan would be deemed approved without any restrictions.

The Appellants (Graham Group) also appealed simultaneously to the zoning board. The theory of this appeal was that if Clepper Farms, Inc. was successful in its mandamus action then they would be "aggrieved parties" under § 1007 of the Municipalities Planning Code. 53 P.S. § 11007. The Court of Common Pleas quashed the appeals of both the Appellants and the Township and remanded the precautionary ...


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