86 Pa. Commw. 385 | Pa. Commw. Ct. | 1984
Opinion by
The Estate of Charles Achey (Landowner) (Appeal No. 3407 C.D. 1983) and Colonial Manor Civic Association (Association) (Appeal No. 3545 C.D. 1983) have filed cross appeals here concerning a decision of the Court of Common Pleas of Lancaster County which denied the Landowner a conditional use permit for a mobile home park.
On November 4, 1981, the Landowner filed an application with the Board of Supervisors of Manor Township (Board)
In a zoning case, where, as here, the court below took no additional evidence, our scope of review is to determine whether or not the zoning board committed an abuse of discretion or an error of law. Appeal of Gillies Corporation, 59 Pa. Commonwealth Ct. 526, 430 A.2d 694 (1981). The existence of a conditional
No. 3407 C.D. 1983
The parcel of land in question here is located in an area of Manor Township which is zoned as a medium-density residential district. Section 704.a of the Man- or Township Zoning Ordinance (Zoning Ordinance) specifically provides for mobile home parks as a conditional use in such a district, and Section 302(23) of the Zoning Ordinance defines a conditional use as follows :
A use which is not appropriate to a particular zone district as a whole, but which may be suitable in certain localities within the district only when specific conditions and factors prescribed for .such cases within this Ordinance are present. -Conditional uses are allowed or denied by the Municipal Governing Body after recommendations by the Planning Agency.
In addition to the above Zoning Ordinance, Manor Township also enacted Ordinance No. 1-77 (Street Ordinance), which regulates the construction of streets, curbs and driveways in the Township and, in pertinent part, provides that:
*389 (C) Width of Newly-Constructed Streets in Developments
(i) The paved roadway width shall not be less than thirty-four (34) feet, curbed on both sides with “Plain Cement Concrete Curb” as detailed on PennDGT design drawing RC-64, dated June 1,1976.
The Landowner here submitted plans to the Board which indicated that the proposed mobile home park would contain streets with a width of 24 to 28 feet, and no curbs. Both the Board and the common pleas court held, inter alia, that inasmuch as the plans were not in compliance with the Street Ordinance, the developer was not entitled to a conditional use permit.
The Landowner essentially raises two issues here concerning the Street Ordinance: whether or not the Street Ordinance is invalid inasmuch as it exceeds the statutory authority granted to Manor Township under the Second Class Township Code ('Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-67201, and, assuming that we hold that the Street Ordinance is valid, whether or not that ordinance is pre-empted by the Lancaster County Subdivision and Land Development Ordinance.
Section 1140.1 of the Code, 53 P.S. §66140.1 provides that:
No person shall construct, open, or dedicate any road, or any drainage facilities in connection therewith, for public use or travel in any township, without first submitting plans thereof to the township supervisors for their approval. (Emphasis added.)
The Code, however, also provides in Section 103, 53 P.S. §65103 that “[t]his act does not include any provisions, and shall not be construed to repeal any acts, relating to .. . (g) State roads, and private roads; . . . .” (Emphasis added.) Clearly, Manor Township
The plans submitted to the Board contain an express disclaimer by the Landowner .stating that “no streets or facilities within the land development are proposed for public dedication. ’ ’ In light of this disclaimer and of the fact that a road becomes public only after dedication and acceptance, Elliott v. H. B. Alexander & Son, Inc., 41 Pa. Commonwealth Ct. 184, 399 A.2d 1130 (1979), we believe that .the roads here will be private roads and, as such, the Street Ordinance is not applicable here.
Inasmuch as we have held that the Street Ordinance is invalid as it applies to private roads, and that the roads within the proposed mobile home park will be private, we need not address the Landowner’s contention that the Lancaster County Subdivision and Land Development Ordinance pre-empts the Street Ordinance. We would note, however, that Section 502 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10502 provides, in pertinent part, that:
The powers of governing bodies of counties to enact, amend and repeal subdivision and land*391 development ordinances .shall be limited to land in those cities, boroughs, incorporated towns and townships wholly or partly within the county which have no subdivision and land development ordinance in effect at the time a subdivision and land development ordinance is introduced before the governing body of the county, and until the city, borough, incorporated town or township subdivision and land development ordinance is in effect and a certified copy of such ordinance is filed with the county planning agency, if one exists. The enactment of a subdivision and land development ordinance by any municipality, other than a county, whose land is subject to a county subdivision and land development ordinance shall act as a repeal pro tanto of the county subdivision and land development ordinance within the municipality adopting such ordinance.
Furthermore, the record reveals that Manor Township has not enacted a comprehensive subdivision and land development ordinance and that the Landowner’s proposed plans for a mobile home park have been approved by Lancaster County. We believe, therefore, that the only standards legally applicable here, those of the Lancaster County Subdivision and Land Development Ordinance, have been met and that the court of common pleas erred in affirming the Board’s decision to deny a conditional use permit on the grounds that the Landowner had failed to comply with the Street Ordinance.
The court also held that the Board’s conclusion that the mobile home park would “detract from the permitted uses of the district” warranted the denial of the conditional use permit. We have repeatedly Mated, however, that the existence of a conditional use provision in a zoning ordinance indicates that the
Accordingly, we will reverse the decision and order of the Court of Common Pleas of Lancaster County.
No.3545 C.D. 1983
Even though it prevailed in the trial court, the Association has cross-appealed, alleging two errors. Pa. R.A.P. 501, however, requires, inter alia, that a party to an appeal must be “.aggrieved. ” See also Section 752 of the Administrative Agency Law, 2 Pa. C. S. §752. We have previously defined an “aggrieved person” to “have a direct interest that is adversely
Order in 3407 C.D. 1983
And Now, this 11th day of December, 1984, the order of the Court of Common Pleas of Lancaster County in tbe above-captioned matter is hereby reversed.
Order in 3545 C.D. 1983
And Now, this 11th day of December, 1984, the appeal of the Colonial Manor Civic Association in tbe above-captioned matter is hereby dismissed.
The Landowner also filed an application with the Lancaster County Planning Commission for approval under the Lancaster County Subdivision and Land Development Ordinance which was ultimately approved and is not at issue here.
In its analysis, the court of common pleas found that the more restrictive road construction standards established by the Street Ordinance pertained here rather than the Lancaster County standards because the county ordinance in Section 102.02 provides that, if a municipality develops more restrictive standards in its road ordinance, those standards apply. Inasmuch as we have concluded that the roads here are private and that Manor Township can not regulate private roads, any issues pertaining to the applicability of Section 102.02 of the county ordinance are now moot.
Special exceptions and conditional uses are similar zoning concepts wliicli allow the landowner to develop his property for a specified use if that use is accord with the standards set forth in the ordinance. See 1 Ryan, Pennsylvania Zoning Law and Practice §§5.1.2, 5.1.4 (1970).