Overlook Associates v. Borough Council

10 Pa. D. & C.4th 121, 1991 Pa. Dist. & Cnty. Dec. LEXIS 263
CourtPennsylvania Court of Common Pleas, York County
DecidedJuly 17, 1991
Docketno. 88-SU-04767-08
StatusPublished

This text of 10 Pa. D. & C.4th 121 (Overlook Associates v. Borough Council) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Overlook Associates v. Borough Council, 10 Pa. D. & C.4th 121, 1991 Pa. Dist. & Cnty. Dec. LEXIS 263 (Pa. Super. Ct. 1991).

Opinion

CASSIMATIS, J,

Presently before this court is the petition for a rule to show cause of Overlook Associates why the court should not take additional evidence or refer to a referee the matter of a disapproval by the Borough Council of the Borough of New Freedom of a preliminary plan pursuant to 53 P.S. §11005-A.

Overlook filed a notice of appeal on November 16, 1988, from a decision of New Freedom dated October 17, 1988 on the grounds that the disapproval of the preliminary plan was arbitrary, capricious, an abuse of discretion, contrary to law, violative of appellant’s rights and made in bad faith by:

“(1) Attempting to deprive appellant of the benefits of the settlement agreement dated October 26, 1987, and
“(2) Attempting to impose illegal conditions and requirements upon appellant’s preliminary plan.”

On April 4, 1990, Overlook filed a rule to show cause along with a petition why the court should not take additional evidence or refer the matter to a [123]*123referee, asserting that proper consideration of the appeal requires the presentation of additional evidence because:

(1) No findings of fact were prepared by the borough.

(2) Reasons for denial are not in conformity with the requirements of the Municipality Planning Code.

(3) Minutes taken at the Borough Council and Borough Planning Commission meetings are inadequate and incomplete.

A prehearing conference was held April 30, 1990 (rescheduled to June 25, 1990 due to an emergency at the courthouse) to establish a briefing schedule and on the same day, an answer to the rule to show cause was filed by New Freedom. Briefs were filed in this case and argument was heard. Prior to reaching the merits of the case, We shall dispose of the petition for a rule to show cause why the court should not take additional evidence or refer the matter to a referee.

Appeals from the approval or disapproval of a subdivision or land development are governed by Article X-A1, appeals to court of the Municipalities [124]*124Planning Code, 53 P.S. §§11001-A to 11006-A. The pertinent sections read as follows:

“53 P.S. §11001-A. Land use appeals
“The procedures set forth in this article shall constitute the exclusive mode for securing review of any decision rendered pursuant to Article IX or deemed to have been made under this act.”
“53 P.S. §11002-A. Jurisdiction and venue on appeal; time for appeal
“All appeals from all land use decisions rendered pursuant to Article IX shall be taken to the court of common pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision as provided in 42 Pa.C.S. §5572 (relating to time of entry of order) or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given as set forth in section 908(9) of this act.”
“53 P.S. §11005-A. Hearing and argument of land use appeal
“If, upon motion, it is shown that proper considerations of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence, provided that appeals brought before the court pursuant to section 916.1 shall not be remanded for further hearings before any body, agency or officer of the municipality. If the record below includes findings of fact made by the govern[125]*125ing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence. If the record does not include findings of fact or if additional evidence is taken by the court or by a referee, the court shall make its own findings of fact based on the record below as supplemented by the additional evidence, if any.” July 31, 1968, P.L. 805, no. 247, art. X-A, §1005-A, added December 21, 1988, P.L. 1329, No. 170, §101, effective in 60 days.
“53 P.S. §11006-A. Judicial relief
“(a) In a land use appeal; the court shall have power to declare any ordinance or map invalid and set aside or modify any action, decision or order of the governing body, agency or officer of the municipality brought up on appeal.
“(d) Upon motion by any of the parties or upon motion by the court, the judge of the court máy hold a hearing or hearings to receive additional evidence or employ experts to aid the court to frame an appropriate order. If the court employs an expert, the report or evidence of such expert shall be available to any party and he shall be subject to examination or cross-examination by any party. He shall be paid reasonable compensation for his services which may be assessed against any or all of the parties as determined by the court. The court shall retain jurisdiction of the appeal during the pendency of any such further proceedings and may, upon motion of the landowner, issue such supplementary orders as it deems necessary to protect the rights of the landowner as declared in its opinion and order.”

“The decision to take additional evidence is vested in the discretion of the common pleas court. [126]*126C&D Landscaping Appeal, 64 Pa. Commw. 448, 440 A.2d 1265 (1982). In order to be entitled to present additional evidence under section 1010, the appellant must demonstrate that the record before the board is incomplete either because appellant was refused the opportunity to be fully heard or that relevant testimbny was excluded. Boron Oil Company v. City of Franklin, 2 Pa. Commw. 152, 157, 277 A.2d 364, 366 (1971); Hedrick v. Zoning Hearing Board of Lower Saucon Township, 23 D.&C. 3d 684, 686 (1981).” Lower Allen Citizens Action Group Inc. v. Lower Allen Township Zoning Hearing Board, 93 Pa. Commw. 96, 106, 500 A.2d 1253, 1259 (1958). See also, Borough Council of Churchill Borough v. Pagal Inc., 74 Pa. Commw. 601, 460 A. 2d 1214 (1983); Hogentogler v. Windsor Township Zoning Hearing Board, 65 Pa. Commw. 451, 442 A.2d 834 (1982). In Lower Allen, the common pleas court carefully examined the record made before the board and found it to be complete and that the challengers had been afforded a full and complete opportunity to be heard. In addition, the common pleas court specifically found that the board had excluded no relevant testimony when it declined to accept some of the evidence offered by the challengers. See Claremont Properties Inc. v. Board of Township Supervisors of Middlesex Township, 118 Pa.

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Bluebook (online)
10 Pa. D. & C.4th 121, 1991 Pa. Dist. & Cnty. Dec. LEXIS 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/overlook-associates-v-borough-council-pactcomplyork-1991.