Appeal from Common Pleas Court, Chester County, Honorable Charles B. Smith, Judge.
Thomas E. Martin, Jr., Kennett Square, for appellant.
John S. Halsted, Gawthrop, Greenwood & Halsted, West Chester, for appellees.
Thomas L. Wenger, Wix, Wenger, Weidner, Fenstermacher & Gunnison, Harrisburg, for Pennsylvania State Association of Township Supervisors.
Craig and Doyle, JJ., and Narick, Senior Judge.
[ 129 Pa. Commw. Page 539]
The Board of Supervisors of West Marlborough Township appeals from an order of the Court of Common Pleas of Chester County, reversing a decision of the board that denied Frederick C. and Eleuthera C. Fiechter's and M. Roy and Gretchen Jackson's (landowners) application for subdivision approval because of the landowners' refusal to dedicate 8 1/2 feet of road frontage property to the township.
The issue is whether a municipality has the power to require the dedication of additional right-of-way property along an abutting street as a condition precedent to subdivision approval where a subdivision ordinance mandates the minimum width for all streets within the township.
The landowners own approximately 25.5 acres of land in West Marlborough Township. The land abuts approximately 1,020 feet of an existing road. The road presently has a right-of-way 33 feet wide.
The landowners filed a subdivision plan with the board seeking to divide their tract into just two equally sized parcels. The board notified the landowners that the West Marlborough Subdivision Ordinance requires a 50-foot right-of-way for all local streets. The board conditioned subdivision approval upon the landowners dedicating to the township 8 1/2 feet of road frontage property in order to comply with section VI of the West Marlborough Township Land Subdivision Ordinance.*fn1 The area of the requested dedication is 1/5 of an acre.
Because the landowners refused to make the offer of dedication, the board rejected their subdivision plan. The landowners appealed the rejection to the Court of Common Pleas of Chester County, which, by order of Judge Smith, reversed the decision of the board, stating that a township's
[ 129 Pa. Commw. Page 540]
subdivision regulation powers do not include the power to condition approvals upon the dedication of property without compensation. This appeal followed.
Section 503(2)(ii) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10503(2)(ii), provides that subdivision ordinances may contain:
(2) Provisions for insuring that:
(ii) streets in and bordering a subdivision or land development shall be coordinated, and be of such widths and grades and in such locations as deemed necessary to accommodate prospective traffic, and ...