Opinion
Argued October 4, 1982
February 9, 1983.
Zoning — Planned residential development — Scope of appellate review — Abuse of discretion — Error of law — Compliance with ordinance requirements — Public interest.
1. Review by the Commonwealth Court of Pennsylvania of a decision of a lower court which took no additional evidence before reversing a rejection by a governing body of an application for planned residential development is to determine whether the governing body abused its discretion or committed an error of law. [643]
2. When a governing body in rejecting an application for a planned residential development clearly errs in determining that such development was not permitted in the location in question and failed to indicate specifically how the public interest would be adversely affected by approval of the plan, the action of the governing body is properly reversed. [643-4]
Argued October 4, 1982, before Judges ROGERS, BLATT and CRAIG, sitting as a panel of three.
Appeal, No. 2532 C.D. 1981, from the Order of the Court of Common Pleas of Allegheny County in case of A. Richard Nernberg, t/d/b/a A. R. Building Co. v. The Council of the Borough of Baldwin, No. SA 240 of 1981.
Application to the Council of the Borough of Baldwin for approval of planned residential development. Application denied. Applicant appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. Permits ordered issued. PAPADAKOS, A.J. Borough appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John R. Luke, Luke Anthony, for appellant.
Jay D. Glasser, Hollinshead and Mendelson, for appellee.
The Council of the Borough of Baldwin (Borough Council) appeals an order of the Court of Common Pleas of Allegheny County which reversed its denial of appellee A. Richard Nernberg's application for tentative approval of a plan to develop 120 garden apartment units in an area designated by Borough ordinance as a planned residential district (PRD).
T/a/d/b/a A. R. Building Co.
After holding a hearing on the appellee's application as required by ordinance, the Planning Commission submitted a report to the Borough Council recommending approval of the plan. After conducting its own public hearing, however, the Borough Council voted to deny the plan on the grounds that the plan failed to meet all of the requirements of applicable ordinances and was not in the public interest.
Our scope of review where, as here, the court of common pleas took no additional evidence, is limited to a determination of whether or not the governing body abused its discretion or committed an error of law. Board of Commissioners of Lower Merion Township v. Haslett, 69 Pa. Commw. 1, 450 A.2d 298 (1982).
After examining the Borough Council's decision, its brief, and the entire record, the court of common pleas found, and we agree, that the Borough Council erred and therefore abused its discretion in denying the appellee's plan. Its determination that a PRD was not permitted in the location in question, being inconsistent with the comprehensive plan, and its failure to advance public interest objections to the said plan of an exceptional and specific nature were clearly in error. See Michaels' Development Company, Inc. v. Benzinger Township Board of Supervisors, 50 Pa. Commw. 281, 413 A.2d 743 (1980); Doran Investments v. Muhlenberg Township Board of Commissioners, 10 Pa. Commw. 143, 309 A.2d 450 (1973).
We explicitly reject the Borough Council's contention in its brief that the court of common pleas made independent findings without taking additional evidence. Rather, we believe that the court merely concluded that as a matter of law, the Borough Council failed to establish sufficient grounds for denying the appellee's plan. Similarly, we reject its argument that the court erred in its holding because only a reproduced (as opposed to the entire) record was before it.
For the reasons stated in the able opinion of Administrative Judge PAPADAKOS in this matter, we will, therefore, affirm the order of the court of common pleas. The said opinion and order may be found at A. Richard Nernberg, t/a/d/b/a A. R. Building Co. v. The Council of the Borough of Baldwin, ___ Pa. D. C.3d ___ (1983).
ORDER
AND, NOW, this 9th day of February, 1983, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby affirmed.