5 Pa. Commw. 1 | Pa. Commw. Ct. | 1972
Opinion by
This is an appeal from an order of the Court of Common Pleas of Montgomery County dismissing the appeal of a landowner from the action of the Board of Supervisors of Lower Providence Township in refusing to approve a plan of subdivision.
The appellant, County Builders, Inc., is the owner of 2.674 acres of land located at the dead-end terminus of Oaklyn Avenue, a public road of Lower Providence Township. Desiring to subdivide its land, the appellant
“January 14,1971
“County Builders, Inc.
306 N. Township Dine Road Scliwenksville, Pennsylvania 19473
Gentlemen:
Please be advised that your Subdivision Plan was rejected by the Board of Supervisors of Lower Providence Township on January 11, 1971, and approval of the plan was at that time refused. Apparently, this plan was submitted with application in the form of a letter, which letter appeared to request some relief in the nature of a Variance. In an application for subdivision approval, it is, of course, impossible for the Board of Supervisors to grant relief from the provisions of prevailing Ordinances by way of a Variance or
“1. The plan shows creation of a dead-end street, which would be unacceptable due to the fact that there would be no provision for snow plowing and adequate fire protection. The Board further feels that it is essential to open Oaklyn Avenue to Marilyn Avenue before allowing development of the subject area.
“2. Lot No. 1 does not have the required frontage on a public street as necessitated by the provisions of Ordinance No. 38, Section 308. There was no satisfactory evidence submitted which would indicate that the lots as created by the Subdivision Plan would have required frontage on a public road of required width, in accordance with both Ordinance No. 38, Section 308, and the provisions of the Land Subdivision Ordinance of Lower Providence Township. The Subdivision Plan and all facts submitted to the Board of Supervisors to date do not indicate the ability of the developer to create a public road upon which the subdivided lots may front.
“It would appear that if a cul de sac is created at the end of Oaklyn Avenue, it would then render one of the lots of the subdivision undersized with regard to area requirements, as indicated under Ordinance No. 5, being the Zoning Ordinance of Lower Providence Township.
Very truly yours,
Joseph J. McCrory, Solicitor, Lower Providence Township.”
As appears by careful study of this communication, the supervisors’ refusal to approve appellant’s subdivision rested on two grounds: (1) That the plan showed an unacceptable dead-end street, a deficiency curable either by further extending Oaklyn Avenue to another
The appellant apparently concedes that there is a township requirement of the dedication of a 50 feet wide right of way and asserts its willingness to provide such. The supervisors therefore properly refused to approve the subdivision application prior to the receipt of adequate assurance of such a dedication in the form of a deed or a formal offer of dedication, especially as the joinder of parties other than the developer was required. The mere exhibition of an unexecuted deed was not sufficient indication of compliance. For this reason we affirm the action of the court below dismissing the appeal.
However, other issues are discussed in the lower court’s opinion which deserve mention here. At argument below the township raised for the first time the alleged deficiency in the width of the 27 feet wide paved cartway which had been constructed by the appellant in accordance with plans and specifications earlier presented to but not approved by the supervisors. The township advised the court and the appellant on this occasion that the width requirement, formerly 27 feet, had been increased to 32 feet by resolution of the supervisors amending the township’s subdivision ordinance. This raises the question of whether an ordinance may be effectively amended by a resolution. It has been held that it may not. Penn Wynne v. Lower Merion Township, 181 Pa. Superior Ct. 524, 124 A. 2d 487 (1956). Further, the alleged amending resolution here was as
, No. 247, 53 P.S. §10101, et seq. Section 505 of Article V of the MPC, 53 P.S. §10505, provides that amendments to subdivision ordinances shall become effective only after a public hearing held pursuant to public notice in the manner prescribed by Section 504 of the MPC, 53 P.S. §10504, for the enactment of such an ordinance. It seems unlikely that the adoption of a resolution would be attended with such formality. Hence, if the 32-foot requirement for paved cartways rests solely on an amendatory resolution, it would be ineffective and therefore provided no valid cause for rejecting appellant’s plan of subdivision. Further, Section 508(2) of Article V of the MPC, 53 P.S. §10508 (2), provides that when an application is not approved as filed the decision must specify the defects, describe the requirements which have not been met and “. . . shall in each case, cite to the provisions of the statute or ordinance relied upon.” The solicitor’s refusal letter made no mention whatsoever of this alleged defect. Section 508(3) of the MPC, 53 P.S. §10508(3), provides that failure to give such notice “. . . in the manner required ...” shall be deemed an approval of the application “. . . in terms presented. . . .”
The supervisors also required the appellant either to arrange for an extension of Oaklyn Avenue to the next public road or to construct a cul-de-sac on his property. We agree with the court below that as a general proposition the requirement of a cul-de-sac at dead-end streets is entirely reasonable. However, it appears not to have been a requirement of the township’s land subdivision ordinance. The solicitor’s letter cites no provision to this effect. By Section 503. of Article V of the MPC, 53 P.S. §10503, the Legislature has
Affirmed.
The Land Subdivision Ordinances we bave encountered condition the requirement of a cul-de-sac upon the length of the proposed dead-end road.