Summary
In DeFeo, the appellants were owners of 13.25 acres of land, one quarter acre of which was located in the Borough of Brookhaven in Delaware County, the rest in neighboring Parkside Borough. The appellants planned to construct apartment buildings on their Parkside land and to use the Brookhaven portion of their tract for an access road. Appellants' application was approved by Parkside Borough but denied by Brookhaven Borough. Since neither the Borough nor the trial court conducted a hearing on appellants' application, this Court remanded to the trial court to make appropriate findings of fact and conclusions of law.
Summary of this case from King v. Perkasie Boro. Z.H.BOpinion
Argued October 4, 1971
November 9, 1971.
Pennsylvania Municipalities Planning Code, Act 1968, July 31, P. L. ___, No. 247 — Findings of fact and conclusions of law — Land development plan — Private streets.
1. A common pleas court taking no additional testimony in an appeal from the denial of an application for the approval of a land development plan, must, if it accepts a stipulation of facts, follow the mandate of the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P. L. ___, No. 247 and prepare special findings of fact and conclusion of law upon which the court's conclusions are based. [378-9]
2. A land development plan which extends into two separate municipalities must nonetheless be examined as a whole rather than be separated into portions corresponding with municipal boundaries, and such a plan must be approved if it meets statutory requirements for approval when viewed in its entirety. [379-80]
3. A plan providing for the construction of an access way by a private concern to be then dedicated as a street is not in violation of a municipal ordinance prohibiting private streets. [380]
Argued October 4, 1971, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MANDERINO and MENCER. Judge ROGERS disqualified himself.
Appeal, No. 261 C.D. 1971, from the Order of the Court of Common Pleas of Delaware County, No. 13578 of 1970, in case of Peter A. DeFeo and P.A.D. Corporation v. Borough Council of the Borough of Brookhaven.
Application for approval of land development plan filed with Borough Council of Borough of Brookhaven. Application denied. Applicant appealed to the Court of Common Pleas of Delaware County. Appeal dismissed. CATANIA, J. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Remanded to the court below.
Holbrook M. Bunting, Jr., with him Trevaskis, Doyle, Curie, Nolan and Bunting, for appellants.
Murray S. Eckell, with him Eckell, Sparks, Vadino, Auerbach Monte, for appellee.
Appellants are the owners of a 13 1/4 acre tract of land, one-quarter acre of which is located in the Borough of Brookhaven, the remainder in the Borough of Parkside, all in Delaware County. Appellants are interested in constructing apartment buildings upon this tract and using that portion of the tract in Brookhaven for the purpose of constructing an access way thereby allowing another means of access to the apartment buildings via Meadowbrook Lane in Brookhaven.
Having secured approval of the Delaware County Planning Commission and Parkside Borough, appellants made application to the Borough Council of Brookhaven to gain approval of that portion of the plan located in Brookhaven. The Borough Council, by resolution, denied the application. Apparently the Borough Council did not have a hearing, for the record does not reveal any testimony received upon the application. Article V of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. ___, No. 247, Art. V, Sections 501-516, 53 P. S. § 10501-10516, does not require such a hearing.
This approval was conditioned on Brookhaven approval.
Following Borough Council's denial of the application, appellants appealed to the Court of Common Pleas. That court took no additional oral testimony but accepted as evidence a stipulation of facts entered into by the parties. The acceptance of this evidence by the lower court required that it decide the case on the merits. See Lester Hauck, et ux., et al. v. Wilkes-Barre City Zoning Board of Adjustment, 2 Pa. Commonwealth Court 76, 276 A.2d 576 (1971). This being the posture of the case before the lower court, it was required to follow the mandates of Section 1009 of the Pennsylvania Municipalities Planning Code, supra, 53 P. S. § 11009, with respect to findings of fact and conclusions of law. Section 512 of the Pennsylvania Municipalities Planning Code, supra, 53 P. S. § 10512. This was not done. Therefore, we must remand the case. See BJM Urban Development Corporation v. Fayette County Zoning Hearing Board, 1 Pa. Commw. 534, 275 A.2d 714 (1971).
Because this case must be remanded, it is appropriate to correct an erroneous impression of the law that appears in the opinion of the court below.
Appellants' application was proper under Section 507 of the Pennsylvania Municipalities Planning Code, supra, 53 P. S. § 10507, which states: "Where a subdivision and land development ordinance has been enacted by a municipality under the authority of this article no subdivision of land development of any lot, tract or parcel of land shall be made, no street, sanitary sewer, storm sewer, water main or other improvements in connection therewith shall be laid out, constructed, opened or dedicated for public use or travel, or for the common use of occupants of buildings abutting thereon, except in accordance with the provisions of such ordinance." Appellants' application must be viewed as one involving land development. Land development is defined as: "(i) the improvement of one or more contiguous lots, tracts or parcels of land for any purpose involving (a) a group of two or more buildings, or . . ." Pennsylvania Municipalities Planning Code, supra, 53 P. S. § 10107 (11).
Although only a small portion of appellants' tract lies within Brookhaven, the land development plan involves the entire 13 1/4 acre tract. It is unreasonable to separate the tract into two portions and then say that because the one-quarter acre portion contains only an access way, it does not fit the definition of land development. The parts must be viewed as a whole to reach the result contemplated by the Code. A view that transcends municipalities' boundaries is necessary to place the access way in its proper context as part of a plan, and thus viewed, it falls within the Code definition of land development.
We are not impressed with the argument that Ordinance No. 25 of Brookhaven precludes approval since it prohibits private streets. The stipulation of facts establishes that appellants will construct the access way to borough specifications and dedicate it as a street. Indeed, the stipulation further establishes that the Borough of Brookhaven Zoning Map of October 10, 1960, carried this very land as an extension of Gibson Boulevard, although a later map did not. This would seem to contradict appellee's position that this access way is a "scheme" conceived by appellants to be inflicted on Brookhaven as a benefit to Parkside. Indeed, since appellants purchased the land in Parkside while this access way appeared on Brookhaven's Zoning Map as a street, the situation might be viewed as just the contrary.
Accordingly, the record is remanded to the court below to make appropriate findings of fact and such conclusions of law as are warranted by the same and not inconsistent with this opinion.