Graham v. Zoning Hearing Board

514 A.2d 236, 99 Pa. Commw. 585, 1986 Pa. Commw. LEXIS 2443
CourtCommonwealth Court of Pennsylvania
DecidedAugust 12, 1986
DocketAppeal, No. 1756 C.D. 1985
StatusPublished
Cited by10 cases

This text of 514 A.2d 236 (Graham v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graham v. Zoning Hearing Board, 514 A.2d 236, 99 Pa. Commw. 585, 1986 Pa. Commw. LEXIS 2443 (Pa. Ct. App. 1986).

Opinion

Opinion by

Judge Craig,

William P. Graham and eight other landowners (Graham Group) appeal from an order of the Court of Common Pleas of Cumberland County affirming a decision of the Zoning Hearing Board of Upper Allen Township which conditionally approved Clepper Farms, Inc. s preliminary subdivision plan. We affirm.

On March 14, 1980, Clepper Farms submitted a preliminary subdivision plan to Upper Allen Township, and on May 19, 1980, the Township Planning Commission recommended that the plan, subject to certain conditions, be approved by the Board of Commissioners of Upper Allen Township. The board of commissioners on June 11, 1980 refused to approve the plan for the [587]*587reasons that were stated as conditions by the planning commission. On June 16, 1980, the board of commissioners notified Clepper Farms of the rejection and set forth the reasons for the rejection, but made no reference to the ordinance or statutory provisions violated by the plan.

Clepper Farms, on July 1, 1980, commenced a mandamus action in the Court of Common Pleas of Cumberland County seeking to compel approval of the plan because the board of commissioners failed to comply with the notice requirements of Section 508(2) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, art. V, as amended, 53 P.S. §10508(2) (MPC). Section 508(2) requires the board of commissioners to cite the provisions of the statute or ordinance it relied upon in disapproving a subdivision plan.

The court of common pleas ordered that the plan be deemed approved subject to the conditions which had been recommended to the board of commissioners by the planning commission. Both Clepper Farms and the board of commissioners appealed from that order to this court. In Clepper Farms, Inc. v. Trimmer, 66 Pa. Commonwealth Ct. 326, 443 A.2d 1385 (1982), this court affirmed the trial courts deemed approval of the plan, but reversed the trial courts order insofar as it had subjected the plan to conditions because those conditions had not been embodied in any township approval nor accepted by the developer.

At the same time that Clepper Farms had filed the mandamus action, it also had filed a precautionary appeal with the court of common pleas pursuant to section 1006(1) of the MPC, challenging the merits of the board of commissioners’ rejection of the plan. On July 10, 1980, the Graham Group filed a precautionary appeal with the zoning hearing board pursuant to section 1007 of the MPC based on the theory that if Clepper Farms [588]*588were successful in its mandamus action, the Graham Group would then become “persons aggrieved” by the deemed approval. In addition, the Graham Group and the township filed a precautionary appeal with the court of common pleas. The court of common pleas quashed that appeal and remanded the matter to the zoning hearing board for a hearing on the merits. Upper Allen Township v. Zoning Hearing Board of Upper Allen Township, 33 Cumb. 76 (C.P. Pa. 1982), aff'd, 77 Pa. Commonwealth Ct. 582, 466 A.2d 292 (1983).

After several hearings, the zoning hearing board found that the plan failed to comply with the ordinance requirements in ten respects, but nevertheless gave conditional approval to the plan by subjecting it to ten so-called “conditions” which spelled out how the plan should be revised to achieve compliance.1 Clepper Farms appealed from that order to the court of common pleas which, after a hearing, the court affirmed. This appeal followed.

[589]*589The Graham Group raises five issues, as follows:

1. Whether the zoning hearing board had the authority to issue a conditional approval of the preliminary subdivision plan?
2. Whether the zoning hearing board erred in approving the preliminary subdivision plan because no special exception for development in the flood plain had been obtained?
3. Whether the zoning hearing board failed to make essential findings of fact and give sufficient reasons for its conclusions regarding the size of the retention basin?
4. Whether the zoning hearing board abused its discretion in requiring that the retention basin be 5.02 acre feet as a condition of approval?
5. Whether the trial court erred in failing to compel adequate open space to be placed in the interior of the subdivision?

Conditional Approval of Preliminary Subdivision Plan

Although conditions attached to developmental approval normally embody additional requirements beyond those specified in ordinance provisions, the “conditions” here imposed by the zoning hearing board, as noted above, did not add new requirements, but only specified changes needed to achieve ordinance compliance.

The Graham Group contends, that because MPC section 1007, and MPC sections 909 and 915 mentioned within it, do not expressly authorize the zoning hearing board to attach conditions to its decision, the zoning hearing board is precluded from issuing a conditional approval, i.e., if the proposal is not in full compliance as submitted, the Graham Group contends that the board must reject it. In addition, the Graham Group argues that those sections should be contrasted with sections [590]*590912 and 913 of the MPC, which expressly authorize the zoning hearing board to attach conditions to its approval of a variance or special exception.

The Graham Group appealed to the zoning hearing board pursuant to section 1007 of the MPC which reads as follows:

Persons aggrieved by a use or development permitted on the land of another who desire to secure review or correction of a decision or order of the governing body or of any officer or agency of the municipality which has permitted the same, on the grounds that such decision or order is not authorized by or is contrary to the provisions of an ordinance or map shall first submit their objections to the zoning hearing board under sections 909 and 915. The submission shall be governed by provisions of section 1005.
Appeals to court from the decision of the zoning hearing board may be taken by any party aggrieved. (Emphasis added.)

53 P.S. §11007.

Although the fourth sentence of section 508(4) of the MPC impliedly recognizes that the governing body may impose conditions on the approval of a preliminary or final subdivision plan, there is no similar language applicable to the zoning hearing board.

However, the purpose of a preliminary plan is essentially conditional in that the developer must fulfill all requirements before he can receive final approval of the plan. Tuscarora Forests, Inc. v. Fermanagh Board of Supervisors, 80 Pa. Commonwealth Ct. 104, 471 A.2d 137 (1984). Therefore, by the very nature of a preliminary subdivision plan, the zoning hearing board does not exceed its power by attaching conditions to its approval of a preliminary plan in order to bring the plan into conformity with the zoning ordinance.

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Bluebook (online)
514 A.2d 236, 99 Pa. Commw. 585, 1986 Pa. Commw. LEXIS 2443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-zoning-hearing-board-pacommwct-1986.