Appeal of Desmond

11 Pa. D. & C.4th 164, 1991 Pa. Dist. & Cnty. Dec. LEXIS 191
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedJuly 8, 1991
Docketno. 3657 of 1990
StatusPublished

This text of 11 Pa. D. & C.4th 164 (Appeal of Desmond) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Desmond, 11 Pa. D. & C.4th 164, 1991 Pa. Dist. & Cnty. Dec. LEXIS 191 (Pa. Super. Ct. 1991).

Opinion

STENGEL, J.,

The compelling legal issue presented by this zoning appeal is whether one township’s designation of the character of a road is binding on the neighboring township’s consideration of a request for a special exception. The appellant, George C. Desmond, is a developer who owns a tract of land which lies in both Pequea Township and West Lampeter Township. Roughly 10 percent of the area of the tract, or 3.5 acres, lies in West Lampeter Township; the remainder of the [165]*165tract, 31.4 acres, lies within Pequea Township; Appellant wishes to build an apartment complex containing 225 apartment dwellings on the property and applied for a special exception to the Pequea Township Zoning Hearing Board.

BACKGROUND

Procedural History

A hearing was held on the application before the board on January 8, 1990. On February 5, 1990, the board denied Desmond’s application on the grounds that the property was not adjacent to a major or minor collector road as required by section 1907.3 of the Pequea Township Zoning Ordinance. Desmond filed a timely appeal from this decision on March 6, 1990, docketed to no. 910-1990.

Desmond then filed a second application for an identical exception on May 1, 1990. The board held a hearing on the second application on June 4, 1990 and again denied the application by a decision dated July 31, 1990. Desmond filed a timely appeal from the board’s second decision on August 30, 1990, docketed to no. 3657-1990.

Pursuant to a stipulation among the parties, these appeals have been consolidated. Briefs were exchanged and oral argument was held on June 12, 1991. No additional evidence was taken by this court.

Appellant filed numerous exceptions to the board’s decisions, alleging in excess of 20 errors. However, only two issues were raised by appellant in his brief: (1) whether the second application for an identical special exception is barred by the doctrine of res judicata; and (2) whether the plan, in fact, complies with Péquea Township’s requirement that it be adjacent to a collector road.

[166]*166The court notes that all other issues raised by appellant ~in his notice of land use appeals and not addressed in his brief are deemed waived pursuant to Lancaster County Local Rule of Civil Procedure no. 35.

Factual History

The portion of appellant’s property within Pequea Township, 31.4 acres, is located in the R-180 Residential Zoning District and contains frontage along Shultz Road and Millwood Road. The additional 3.5 acres of the tract are located along Millwood Road in adjacent West Lampeter Township.

Both the first application and the second application requested a special exception under section 701(5) of the Zoning Ordinance in order to use the property for a 225-unit apartment complex. Access to this development is proposed from Shultz Road, which is a local road, and not from Millwood Road.

All of the apartment buildings will be located in that portion of Pequea Township which is zoned R-180. The R-180 Residential District authorized apartments as a use by special exception, subject to section 1907 of the Zoning Ordinance. Section 1907 contains three requirements for apartments in the R-180 District.

In the decision rendered on the first application, the board found that Desmond had met all the specific requirements except that set forth in section 1907(3), which requires that the apartment complex be adjacent to a collector road.1

[167]*167The board found that neither Shultz Road nor Millwood Road is a major or minor collector road for purposes of this application.2 Therefore, the board concluded that the proposed project was. not adjacent to a major or minor collector road and denied the special exception on that basis.

Not to be denied, appellant filed a second application for a special exception. In the second request, appellant noted that West Lampeter Township had officially designated Millwood Road as a “collector road” and argued this as the basis for Pequea Township to find that Millwood Road is a “collector road.” In addition to repeating its earlier arguments, Pequea Township raised the issue of res judicata in response to the second application.

There seems to be general agreement that the second application was the same as the first application in all material respects. The only “new” evidence presented by Desmond at the second hearing was that West Lampeter Township adopted by .resolution on April 17, 1990 a transportation study as part of its comprehensive plan. This study designated the relevant portion of Millwood Road as a minor collector road. However, Desmond also presented as an exhibit a letter from Benjamin B. Groff, West Lampeter Towhship secretary, dated June 1, [168]*1681990, which states in part: “To the best of my knowledge, since March 1962, as depicted on the Township’s Road Map and in accordance with their 1959 Subdivision Ordinance, Millwood Road has been considered to be used as a collector road.”

The second decision of the board found that appellant had met all of the requirements for a special exception, save for the fact that the property was still not in compliance with section 1907(3) in that it was not adjacent to a collector road. The board also addressed West Lampeter Township’s official designation of Millwood Road as a collector road:

“The board believes that the additional testimony adduced at the second hearing is not sufficiently different from information produced at the first hearing to justify any different decision. Since the ‘new’ evidence is merely a reconfirmation of something that existed at the time of the January 8, hearing, res judicata applies to this case. The application is subject to denial on this basis alone.”

The second application was denied for failure of appellant to comply with the requirement of section 1907(3), that the property be adjacent to a major or minor collector road.

DISCUSSION

We will examine two issues in this zoning appeal: (1) whether the board erred in its finding that the subject property did not lie adjacent to a “collector road”; and (2) whether res judicata should have applied to bar the second application.

[169]*169 The Collector Road Requirement

Essentially, appellant wants us to rule that Pequea Township must accept West Lampeter Township’s characterization of Millwood Road. Appellant’s, position is clear: The subject property does lie adjacent to a collector road. Appellant places little weight on the fact that the designation of Millwood Road as a “collector road” is made by West Lampeter Township, not by Pequea Township. Desmond notes that Pequea Township’s Zoning Ordinance requires that the property be adjacent to a minor or major collector road. The ordinance does not specifically require that the collector road be “in the township.” In short, appellant argues that the ordinance does not require proximity to a Pequea Township collector road and that- any collector road will suffice. The township’s position is that Millwood Road.is designated as a local access road, not as a collector road.3 Pequea Township argues that its own designation of Millwood Road should control.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

King v. Perkasie Borough Zoning Hearing Board
552 A.2d 354 (Commonwealth Court of Pennsylvania, 1989)
Bilbar Construction Co. v. Easttown Township Board of Adjustment
393 Pa. 62 (Supreme Court of Pennsylvania, 1958)
Namcorp, Inc. v. Zoning Hearing Board
558 A.2d 898 (Commonwealth Court of Pennsylvania, 1989)
City of Pittsburgh v. Zoning Board of Adjustment
559 A.2d 896 (Supreme Court of Pennsylvania, 1989)
St. Luke Evangelical Lutheran Church v. Zoning Hearing Board
403 A.2d 128 (Commonwealth Court of Pennsylvania, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
11 Pa. D. & C.4th 164, 1991 Pa. Dist. & Cnty. Dec. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-desmond-pactcompllancas-1991.