65 Pa. Commw. 112 | Pa. Commw. Ct. | 1982
Opinion by
Before us is an appeal brought by appellants, landowners, Bert R. and Elsie M. Wiggs of an order of the Court of Common Pleas of Northampton County denying their motion to take off a non-suit. In their motion before the court below the appellants sought to have the appellees, the Hanover Township Planning Commission and Board of Supervisors (Township), sign and thereby indicate their approval of a subdivision plan which the appellants had submitted.
The facts in this case are not in dispute. On April 5, 1976, the appellants submitted a mandatory “PreApplication Sketch Plan” to the Township and on May 27, 1976, after reviewing the plan, the Township informed them that the proposed plan did not comport with certain
All applications for approval of a plat ... whether preliminary or final, shall be acted upon by the governing body or the planning agency within such time limits as may be fixed in the subdivision and land development ordinance but the governing body or the planning agency shall render its decision and communicate it to the applicant not later than ninety days following the date of the regular meeting of the governing body or the planning agency ... next following the date the application is filed....
(3) Failure of the governing body or the planning agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented____
The appellants argued below, that their plan should have been deemed approved inasmuch as more than 90 days had elapsed between their April 5, 1976 preliminary plan submission and the Township’s August 12, 1976 denial. The court below, after hearing testimony, found that inasmuch as substantial changes were voluntarily made by the appellants to their plan on June 18 and 23 of 1976, the 90 days would commence on either of these dates and,
We agree with the court below that the instant situation is controlled by our decision in DePaul Realty. In that case the applicant/landowner filed a revised subdivision plan because a denial of a parking variance sought by him revealed a defect which existed in his original subdivision plan. We held there that the submission of the revised plan was voluntary and inasmuch as the changes therein were substantial, Section 508’s 90 day period began to run anew from the filing date of the revised plan. We recognized that “DePaul had an option. It could have insisted on its rights under the originally filed plan, and if the Borough Council had not acted within 90 days in such case, then DePaul would have been entitled to approval of its plans.” Id. at 23, 324 A.2d at 835. Even though placing the applicant in such a dilemma, at first blush, might seem harsh, we observed, acknowledging the often technical nature of such plans, that:
The logic of this holding is realized when one notes that under DePaul’s contention, the applicant could file revised plans on the 89th day, and the governing b'ody would have to review the revised plans and render its adjudication within 24 hours. Clearly, this was not the intent of the Legislature.
Id.
We reiterate here the DePaul Realty proposition that the public’s interest in uniform land development must take precedence over private interests, see Section 1922(5) of the Statutory Construction Act of 1972, 1
Our close review of the record indicates that the court below was correct. Specifically, a comparison of the original preliminary plan with the revised plan discloses that the appellants made numerous
We must next determine whether or not the instant situation was a “clear case” in which a motion to take off a non-suit should have been denied. Generally, a non-suit is proper only if the fact-finder, after viewing the evidence (and all reasonable inferences incidental thereto) in the light most favorable to the complainant, could not reasonably conclude that the elements of a cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); see Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970). To make such an examination requires us first to determine whether or not the Township’s denial of the appellants’ revised plan was justified on the basis that it was not in compliance with the . Township’s land development ordinances and regulations. And our careful scrutiny of the record indicates that the court below was correct in finding that the appellants’ original and revised plan still did not comply with a number
We will, therefore, affirm the order of the court below.
Order
And, Now, this 2nd day of March, 1982, the order of the Court of Common Pleas of Northampton County in the above-captioned matter is affirmed.
Specifically: (1) Article III, Section 9(C) of the Hanover Township and Land Development Regulation (Regulations) which requires a minimum setback from the right-of-way lines of both streets; (2) Article III, Section 3(D) of the Regulations which requires proposed subdivisions and land developments be coordinated with the existing .nearby neighborhood so that the community as a whole may develop harpioniopsly; and, (3) Article III, Section 7 of the Regulations which requires sidewalks to be installed within the rights-of-way of all arterial and collector streets located in or adjacent to all subdivisions. We note, that the Township and the court below also found that the plan violated Section 10(D) (1) of the Regulations; however, this section was not included in the record nor mentioned in the pleadings. Inasmuch as we believe that its exclusion or inclusion would not affect the outcome of this case, we will exclude it.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10508.
Specifically: (1) the rotation of certain lots to permit safer vehicular access; (2) the inclusion of the width of paved portions of local roads as required by Article III, Section 4(D) of the Regulations; (3) the inclusion of paved cartway data as required by Article III, Section 5(G)(9); (4) the inclusion of a street profile and cross-section as required by Article III, Section 5(G)(12); (5) the addition of paving and curbing data as required under Article III, Section 5 (G)(13); (6) the inclusion of drainage easements as required by Article III, Section 6; (7) the inclusion of sidewalk in all street rights-of-way as required by Article III, Section 7(B)(1); (8) the elimination of access across planting screens as required by Article III, Section 9(F); (9) the inclusion of a fire hydrant as required under Article III, Section 15(D)(1); (10) the inclusion of utility easements as required by Article III, Section 17(B); (11) the inclusion of ground surface profiles over all proposed streets as required by Article V, Section 1(D)(3); (12) the inclusion of the location of curbing as required by Article V, Section 1(D)(4); (13) the inclusion of the developer’s signature and certification of ownership as required by Article V, Section 1(E)(1); and, (14) the inclusion of an engineer’s certification as required by Article V, Section 1(E)(2).
We note that the revised plan went well beyond the scope of these comments.
Specifically: appellants’ plan as revised failed to comply with: (1) Article III, Section 3(D), which requires a proposed subdivision to be coordinated with neighboring areas and that proposed street patterns complement existing or paper streets on the current Township map; (2) Article III, Sections 4(A) and 4(A)(3) which requires streets to be arranged in relation to existing and planned street connections into and from adjacent areas; (3) Article III, Section 9(M) which requires permanent reference monuments to be placed in specified locations; and, (4) Article V, Section 1(D)(6), which requires the notation as to all land and streets to be dedicated to the Township. Of course, it is axiomatic that subdivisions which do not comply with valid zoning regulations cannot be approved. We also note that the appellants do not argue, in their brief, that their revised plan was in total compliance with the regulations.