Raum v. Board of Sup'rs of Tredyffrin Tp.

• Decision Date: 24 February 1977
• Citation: 29 Pa.Cmwlth. 9,370 A.2d 777
• Parties: Ernest P. RAUM et al. v. The BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP and Intervenors Richard J. Fox et al. Appeal of Richard J. FOX et al. (two cases). Appeal of Ernest P. RAUM et al. v. ZONING HEARING BOARD OF TREDYFFRIN TOWNSHIP and Intervenors Richard J. Fox et al. MAIN LINE HOUSING IMPROVEMENT CORPORATION, a non-profit corporation, et al., Appellants, v. The ZONING HEARING BOARD OF TREDYFFRIN TOWNSHIP and Tredyffrin Township, Appellees.
• Court: Pennsylvania Commonwealth Court

Page 777

370 A.2d 777

29 Pa.Cmwlth. 9

Ernest P. RAUM et al. v. The BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP and Intervenors Richard J. Fox et al.

Appeal of Richard J. FOX et al. (two cases).

Appeal of Ernest P. RAUM et al. v. ZONING HEARING BOARD OF TREDYFFRIN TOWNSHIP and Intervenors

Richard J. Fox et al.

MAIN LINE HOUSING IMPROVEMENT CORPORATION, a non-profit

corporation, et al., Appellants, v. The ZONING HEARING BOARD OF TREDYFFRIN TOWNSHIP and Tredyffrin Township, Appellees.

Commonwealth Court of Pennsylvania.

Argued Dec. 7, 1976.

Decided Dec. 23, 1976.

Opinion Feb. 24, 1977.

[29 Pa.Cmwlth. 11] Richard L. Bazelon, Philadelphia, for appellant.

William H. Lamb, Lamb, Windle & McErlane, Lawrence E. Wood, West Chester, for appellees.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, MENCER, ROGERS and BLATT, JJ.

ORDER

AND NOW, this 22 day of December, 1976, it is hereby ordered as follows:

1. That the Petitioners' subdivision plans for their tract, which were rejected by the Board of Supervisors at its August 23, 1976 meeting, are approved, and it is further ordered that the Board of Supervisors and appropriate Township officials take any and all action required by law to certify and record such approval, and to have the plans recorded by the Recorder of Deeds in Chester County;

2. That Petitioners' plans for Chesterbrook Boulevard, which were rejected at the meeting of the Board of Supervisors on August 23, 1976, are approved, and further that the Board of Supervisors issue a permit evidencing such approval and authorizing construction of Chesterbrook within seven (7) days of this Order;

3. That Petitioners' plans for the improvements associated with Section I of the R-1 subdivision, which were rejected by the Board of Supervisors at its August 23, 1976 meeting, are approved, and further that the Board of Supervisors issue a permit evidencing such approval and authorizing construction of the improvements shown in these plans within seven (7) days of this Order;

4. That Petitioners' plans for the improvements associated with Section II of the R-1 subdivision, which were rejected by the Board of Supervisors at its September 13, 1976 meeting, are approved, and further that the Board of Supervisors issue a permit evidencing such approval, and authorizing construction of the said improvements shown on these plans within seven (7) days of this Order;

5. That Petitioners' plans for Duportail and Lee Roads, which were rejected by the Board of Supervisors at its September 13, 1976 meeting, are approved, and further that the Board of Supervisors issue a permit evidencing such approval and authorizing construction of Duportail and Lee Roads within seven (7) days of this Order 6. That Tredyffrin Township remit forthwith to Petitioners the difference between the $22,000.00 filing fee that Petitioners were required to pay with the subdivision application and the fee which would have been required under the prior fee schedule;

7. That the new fee schedules concerning land development plans which were adopted by the Board of Supervisors in January, 1976, are unlawful and null and void;

8. That the Board of Supervisors forthwith undertake to adopt new fee schedules which bear undeniable and appropriate relation to services rendered in performing official functions of review, said fee schedules to be effective prospectively;

9. That the Board of Supervisors of Tredyffrin Township shall cease and desist from acting to prevent development of Petitioners' land under the zoning upheld by this Court's prior adjudication;

10. That Petitioners may re-petition this Court for effective relief in the event that the Board of Supervisors takes further action to prevent development of this land;

11. That the record in this case shall be retained by this Court until further Order to facilitate consideration of any additional motions which may In futuro be necessary to prevent a nullification of our prior adjudication.

Opinion of the Court to follow.

OPINION

CRUMLISH, Jr., Judge.

Presently before this Court is the Petition of Richard J. Fox, Greenview Associates and Picket Post Village, Inc. (Fox), seeking an order enforcing judgment previously entered sustaining the validity of zoning of certain tracts owned by Fox in Tredyffrin Township commonly referred to as the Chesterbrook tracts. Our opinion sustaining the validity of that zoning is reported as Raum v. Board of Supervisors of Tredyffrin Township, 20 Pa.Cmwlth. 426, 342 A.2d 450 (1975). In that opinion, this Court validated the Township's amending of its comprehensive plan to designate a 1,000 acre portion of the Township as a Unified Development Area (U.D.A.) which resulted in an ordinance being passed implementing the U.D.A. concept with respect to lands owned by Fox. Timely appeal by local residents and a citizens group named Citizens Organized to Reclaim Chesterbrook (CORC) was taken to the Court of Common Pleas of Chester County, which reversed the zoning board and invalidated the ordinance. We, in turn, reversed the court below and validated the zoning as applicable to Fox. After our opinion was filed, a petition for allocatur was filed in the Supreme Court and subsequently denied, finalizing our decree of the validity of the zoning of Chesterbrook.

Immediately following the denial of allocatur, the Township commenced what this Court views as a deliberate attempt to thwart the letter and spirit of our validation of the Fox zoning by unjustified refusals to grant certain permits, the enactment of harsh and unreasonable fee schedules pointed to Fox's development of the Chesterbrook tract, purposeful delays in acting upon applications for development submitted by Fox, and intimidation by advertising rezoning of Chesterbrook immediately following the Supreme Court's denial of allocatur. All of these actions are accurately described in both the Petition for Order to Enforce Judgment and the Supplement thereto, and the Township's and CORC's answers in response.

The Township's defense of these allegations of non-compliance with our prior order has been well presented by its solicitor, and essentially resolves to one of averring legitimate disputes in interpretation of ordinances and reasonable actions by the Board of Supervisors in exercise of their police power to insure effective planning and proper adherence to standards of development. Taken individually, some of the arguments presented on the Township's behalf would seem plausible, but for the overriding course of conduct of record, which exhibits a persistent intent to thwart our prior Order and in turn the meaningful development of Chesterbrook.

Prior to a disposition of the legal issues before this Court, it is necessary to set forth some basic foundations, and legitimate concerns of the parties litigant in this, and all zoning litigation of this nature.

This Court is not unaware of the controversies plaguing local municipalities which are all too often understaffed and underfunded and which, by no fault of their own, must deal with certain developers who would prey on the lack of local sophistication to impose shoddy development on the municipality for increased profit to themselves. In large measure, the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, As amended, 53 P.S. § 10101, was the legislative response to such actions and was an attempt to formalize zoning substantive law and procedure into a modern workable model insuring orderly process in the development of lands in this Commonwealth.

Recently, however, we have noticed an ever increasing undercurrent of sentiment in local municipalities which has as its basis, the rejection of further development per se, regardless of its technical and/or social merit. This no growth status quo thinking surfaces in disputes not unlike the instant one. On one hand, we are presented with a developer, who, in our review of this protracted litigation, has presented plans and approaches of an impeccable nature to the Township for the orderly and constructive use of his tract. On the otherhand, we are presented with local officials charged with the responsibility to review, comment upon, give constructive criticism to, and pass upon schemes of planning brought to them by developers, and we are not unsympathetic to the position in which supervisors and other local officials find themselves in discharging their responsibilities. Clearly, their duty is to actively oppose schemes of development unreasonably proposed and conceived, but likewise, their duty is to sanction well planned development.

Our sympathies are taxed, however, when local officials, for trifling, over-technical, or simply reasons unrelated to the law of zoning, oppose development otherwise judicially sanctioned. Most certainly, we must balance the vested rights of the landowner -developer with the legitimate exercise of police power by local officials in the granting of permits, etc. And, there may well be cases In futuro where a township, and its officials, will be able to demonstrate the viability of the objections to the grant of permits and reasons for halting of development of tracts whose zoning is not in question. The record before us does not present such a case.

On December 22, 1976, we entered an Order granting the Fox prayer for enforcement of our previous Order, Raum v. Board of Supervisors of Tredyffrin Township, (Nos. 1322, 1323 and 1386 C.D.1974, filed December 22, 1976), and the instant opinion is written in support thereof.

The parties to this proceeding have exhaustively set forth the facts and law relative to the present petition for order enforcing judgment, and further, the Township ¹ has filed a Motion to Quash the instant petition. Prior to reaching the merits of the petition, we shall dispose of the Motion to Quash.

Motions to Quash

The Township has filed a Motion to Quash Fox's Petition for Order to Enforce Judgment. As we...