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05/12/97 WARWICK LAND DEVELOPMENT v. BOARD

May 12, 1997

WARWICK LAND DEVELOPMENT, INC., APPELLANT
v.
THE BOARD OF SUPERVISORS OF WARWICK TOWNSHIP, CHESTER COUNTY, PENNSYLVANIA



Appealed From No. 95-00138. Common Pleas Court of the County of Chester. Judge WOOD.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Friedman. Judge Leadbetter Dissents.

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: May 12, 1997

Warwick Land Development, Inc. (Property Owner) appeals from an order of the Court of Common Pleas of Chester County (trial court) dismissing Property Owner's appeal from the denial of its Application for Preliminary Subdivision Approval (Application) by the Board of Supervisors of Warwick Township (Board of Supervisors).

Property Owner sought subdivision approval to modify a 23.7 acre parcel of land (Steepleview Parcel) located in an R-3 Residential Zoning District on the south side of Troop Road in Warwick Township (Township). The Steepleview Parcel contains a lawful nonconforming mobile home park with 29 mobile home sites, as well as one single-family detached dwelling. Use of the Steepleview Parcel for mobile homes predated the current Township Zoning Ordinance, which now permits mobile home parks in R-3 Districts as conditional uses requiring Planned Residential Development (PRD) approval and a minimum lot size of thirty-five (35) contiguous acres in the R-3 District. (Township Zoning Ordinance at § 701D.4, R.R. at 117a; § 902B, R.R. at 120a.)

Under its subdivision plan (Steepleview Plan), dated January 20, 1994, Property Owner proposed subdividing the Steepleview Parcel into eight lots, confining the currently existing mobile home sites and single-family dwelling to one lot of 14.9 acres and creating single-family detached dwellings on the seven remaining lots. *fn1 At a December 6, 1994 meeting, the Board of Supervisors denied Property Owner's Application, primarily on grounds that it increased the level of non-conformity of the mobile home park by reducing its lot area from 23.7 to 14.9 acres.

In order to create a lot large enough for a PRD, Property Owner had proposed adding a portion of an adjacent 26 acre parcel of property (Troop Hill Parcel), also in the R-3 District, to that portion of the Steepleview Parcel containing the mobile homes, so that the combined properties would fulfill the 35 acre minimum requirement for a PRD. The Township Zoning Ordinance defines a PRD as:

A contiguous area of land to be developed as a single entity for a number of dwelling units, the development plan for which must comply with the lot size, bulk or type of dwelling, density, lot coverage, required open space and other provisions of article 9.

(Township Zoning Ordinance § 201, R.R. at 111a.) Article 9 provides that each PRD "shall have a minimum contiguous area of thirty-five (35) acres within the R-3 District." (Township Zoning Ordinance § 902B, R.R. at 120a.) The Township Zoning Ordinance does not define contiguous; thus, as part of its Application, but without actually filing a PRD application, Property Owner asked the Board of Supervisors to confirm whether these portions of the Steepleview and Troop Hill Parcels are "contiguous" for the purpose of qualifying as a PRD under section 902B of the Township Zoning Ordinance.

In disapproving the Application, the Board of Supervisors rejected this approach, concluding that the Steepleview and Troop Hill Parcels are not under common ownership, *fn2 nor under common control pursuant to a written agreement that development will be under a single plan with common responsibility and authority. *fn3 (See Township Zoning Ordinance § 902A, R.R. at 120a.) The Board of Supervisors also denied approval based on its interpretation of the term "contiguous," concluding that, because the two parcels are divided by a public highway, Troop Road, they are not contiguous and, thus, could not be combined to satisfy the minimum acreage requirements for a PRD. (Appellant's brief, Appendix 2 at 2, Trial ct. op. at 2.)

The Township Solicitor formally advised Property Owner of the Board of Supervisors' denial in a letter dated December 7, 1994 (Denial Letter). In its entirety, the Denial Letter provides:

This is to formally advise that the Board of Supervisors of Warwick Township voted to deny the application of Warwick Land Development, Inc. for the subdivision known as "Steepleview" at its regular monthly meeting on December 6, 1994. Because you were at the meeting, you know of the action by the Board and this letter serves as the writing required under Section 508 of the Municipalities Planning Code.

The Board denied the application for the reasons set forth in the review letter of Yerkes Associates, Inc. dated February 9, 1994, a copy of which is attached hereto and incorporated by reference herein. The Board further denied the subdivision on the basis of the Warwick Township Planning Commission recommendations of March 28, 1994, which were adopted by the ...


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