7 Pa. Commw. 6 | Pa. Commw. Ct. | 1972
Opinion by
This is an appeal from an order of the Court of Common Pleas of Delaware County, dated February 14, 1972, approving a Land Use Plan for a Planned Residential Development (PRD) submitted by Gwen D. Abel and George G. Abel, III (Abels) to the Supervisors of the Township of Middletown (Township). By virtue of the court’s order, the Township’s disapproval of the Land Use Plan was reversed, and the matter was remanded to the Township for further proceedings, the court having granted the Abels leave to file their applications for preliminary and final approval of the PRD.
The procedural aspects of this case are confusing, because the Township attempted to expand the powers granted to it under the provisions of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P. L. . , No. 247, art. I, Section 101 et seq., 53 P.S. §10101 et seq., and more specifically the provisions of Article YII of that Act, 53 P.S. §10701 et seq.
On August 10, 1970, pursuant to the enabling provisions of the MPC, the Board of Supervisors of the Township adopted Ordinance No. 136, and on October 12, 1970, adopted Ordinance No. 139 amending Ordinance No. 136. These Ordinances were intended to establish the procedures and requirements for the implementation of a Planned Residential Development Use within the Township. In addition to the usual provisions of a Planned Residential Development Ordinance, the Township included a procedural requirement mandating the prior approval of a Land Use Plan before the presentation of an application for preliminary approval of a PRD. The Ordinances make it quite clear that this required prior approval was a condition precedent to the filing of an application for a preliminary approval of a PRD.
On October 12, 1970, the Abels informally discussed with the Board of Supervisors of the Township the possibility of developing their 80-acre tract as a PRD. On November 10,1970, the Abels again appeared before the Board regarding their proposal. Absent a hearing, the Board, by letter dated December 10, 1970, notified the Abels that, on December 2, 1970, their request for approval of their Land Use Plan submitted under the Towxxship’s Ordinance No. 136 was denied. This notice specifically mentioxxed Section 951(a). On January 8, 1971, the Abels filed a zoning appeal in the Court of Common Pleas of Delaware County from the letter, dated December 10, 1970. The court by opinion, dated April 13, 1971, held that the prior approval required by the above-quoted ordinances “. . . is an unauthorized expansion of the powers conferred upon it by the Municipalities Planning Code, whei*e the power to reject and deny such Land Use Plan is claimed by the Township not to be subject to judicial review.” Having thus
Following this hearing, the Abels received an undated decision of the Board of Supervisors which once again denied approval of the Land Use Plan stating that it was not in harmony with what had been planned for the area as reflected in the Comprehensive Plan for Middletown Township. This document, entitled a “decision” was signed by the Solicitor for the Board of Supervisors, and not by any of the members of the Board. This adjudication was again appealed to the court below. In essence, in an opinion, dated February 14, 1972, the court held that the Abels had satisfied all of the requirements set forth in the Ordinances for the approval of its Land Use Plan, and therefore the Township had arbitrarily, capriciously and without just cause denied the approval. The court highlighted the fact that the Township’s Ordinances provided for a three-step procedure, the first step of which was the condition precedent approval prior to the two remaining steps involving applications for approval of preliminary and final plans. The court concluded with an order as described at the beginning hereof.
It is the Township’s position that the Abels had acted prematurely in that the Township had the power to exercise its zoning discretion without judicial review by
The MPC in Ait. VII, 53 P.S. §10701 et seq., provides an elaborate and specific list of provisions under which a municipality may provide for a PRD. The problem arises by virtue of the fact that the Township has gone beyond the legislative grant of power by requiring the condition precedent approval. Section 702 (3), 53 P.S. §10702(3) states: “Such ordinances shall: (3) Set forth the procedures pertaining to the application for, hearing on and tentative and final approval of a planned residential development, which shall he consistent with the provisions of this article for such applications and hearings.” (Emphasis added.) All of the provisions of Article VII of the MPC provide for an application to be filed, after which the procedural aspects of the Code are brought into play. Section 707 (6), 53 P.S. §10707(6) states: “The application for and tentative and final approval of a development plan for a planned residential development prescribed in this article shall be in lieu of all other procedures or approvals, otherwise required pursuant to Article V and VI of this act.” This section, among others, makes it quite clear that the legislative intent was to establish a two-step procedure for the approval of a PRD, namely, applications for (1) a preliminary or tentative plan, and (2) a final plan. If any further proof were needed, it can be found in Section 712 of the MPC (53 P.S. §10712) which states: “Any decision of the governing-body under this article granting or denying tentative or final approval of a development plan or [sic] shall be subject to appeal to court in the same manner and within the same time limitations, as is provided for zoning appeals by this act.”
In other words, all of the provisions of the MPC point to a legislative intent for a procedure as is specifically outlined in that Act. The Pennsylvania Su
Affirmed.
It should be noted that this section of the MPO specifically regulates hearings required for preliminary approval applications.
This Court recognizes that zoning enabling legislation passed subsequent to the passage of Section 58 of the Statutory Construe