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EAST PENNSBORO TOWNSHIP v. PENNSYLVANIA BUILDERS ASSOCIATION (12/12/89)

decided: December 12, 1989.

EAST PENNSBORO TOWNSHIP, APPELLANT,
v.
PENNSYLVANIA BUILDERS ASSOCIATION, HOME BUILDERS ASSOCIATION OF METROPOLITAN HARRISBURG, VERNON R. SEALOVER ET AL., APPELLEES



Appeal from Common Please Court, Cumberland County; Honorable Edgar B. Bayley, Judge.

COUNSEL

Henry F. Coyne, Camp Hill, for appellant.

Loudon L. Campbell, Harrisburg, for appellees.

Crumlish, Jr., President Judge, Barry, Judge (p.) and McGinley, JJ. Crumlish, Jr., President Judge.

Author: Barry

[ 130 Pa. Commw. Page 117]

OPINION

East Pennsboro Township (Township) appeals from an order of the Court of Common Pleas of Cumberland County granting summary judgment in a declaratory judgment action seeking to invalidate its Partnership Highway Improvement Ordinance (Ordinance). The appellees include a statewide trade association (Pennsylvania Builders Association (PBA)), a regional trade association (Home Builders Association of Metropolitan Harrisburg) and individual builders in their own right (Vernon R. Sealover, t/a Vernon R. Sealover Construction Co. and S & A Custom Built Homes, Inc.),*fn1 who are required by the Ordinance to pay assessments as a condition of receiving building permits in the Township. We affirm.

The Transportation Partnership Act (Act), Act of July 9, 1985, P.L. 187, as amended, 53 P.S. §§ 1621-1626 (Purdon Supp.1989), was passed by the Pennsylvania legislature in response to the decrease in federal aid for the financing of transportation projects. Recognizing that state and local funding capabilities are not always sufficient to meet the transportation needs of a particular area, the Act enables municipalities "to provide funding for transportation projects in areas where economic growth and development has made the transportation facilities and services inadequate." Section 1.1(b) of the Act, 53 P.S. § 1621.1(b).

The Ordinance was enacted on March 3, 1987, pursuant to the Act. The stated purpose of the Ordinance is to establish a ten year capital improvement program for Township highways. Section 4 of the Ordinance designates the entire Township as a transportation district and states that all properties within the Township will benefit from the implementation of the highway improvement program based on the extent and distribution of the projects contained therein.

[ 130 Pa. Commw. Page 118]

Section 7 of the Ordinance sets forth, in general terms, the assessments to be imposed upon existing and newly developed properties in order to finance the highway improvement program. Section 7 provides:

Section 7. Providing for an Assessment on Existing Properties as well as the Developers/Owners of New Buildings Constructed, or Buildings Renovated within East Pennsboro Township. In order to provide for an Assessment on the existing properties of East Pennsboro Township, the Board of Commissioners will contribute an amount equal to forty percent (40%) of the cost of the projects shown on the ten year highway program, while the Developers/Owners will contribute the remaining sixty percent (60%) of these cost [sic]. These percentages were selected as sixty percent (60%) of the Township is currently undeveloped. The Townships [sic] contribution can be taken from General Fund Monies, Liquid Fuels Tax, State Funds, Federal Funds, or Separate Private Funding, while the Owners/Developers contributions will be determined by the calculation provided for in Sections 8 through 11 of this Ordinance, and the method of payment provided for in Section 13 of this Ordinance.

Section 8 of the Ordinance establishes the calculations to determine the sixty percent assessment on new construction. The total cost of the highway improvement program is $814,500. The Township's forty percent share ($325,800) is subtracted from the total cost, leaving a balance of $488,700 to be assessed to new construction. The study*fn2 underlying the Ordinance estimates that the total number of average daily vehicle trips generated from new development throughout the township over the next ten ...


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