finding, inter alia, that a developer, seeking to build several commercial structures on a 16.6 acre tract of land zoned general commercial, could not be prevented from budding structures because they were near, but not in, a residential district
How later courts described this case
- finding, inter alia, that a developer, seeking to build several commercial structures on a 16.6 acre tract of land zoned general commercial, could not be prevented from budding structures because they were near, but not in, a residential district
- holding that subdivision plan could not be rejected on basis of subdivision ordinance statement of purpose declaring that subdivision must be coordinated with existing developments so that “area as a whole may be developed harmoniously”
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Judge Blatt :
I must respectfully dissent.
The evidence submitted to the township board of commissioners clearly supports its finding number 3, which reads in full:
3. The component parts of the proposed subdivision have been arranged so as to maximize the detrimental affects [sic] of such a subdivision upon the surrounding neighborhood in general and the abutting residential properties in particular and is not in conformity with the Subdivision and Land Development Ordinance *47 of South Whitehall Township, Sections 131.11, 713.03, and 721.
a. The most intensive use of the subject premises is the primary commercial building which is thrust into the area closest to residential properties.
b. The location of the rear of the primary commercial building facing the residential properties will accentuate the problems of noise from loading and unloading, trash pick up, late night and early morning deliveries and the sound of heavy duty trucks and other commercial vehicles by concentrating them at the area closest to the residential properties.
c. The necessity of illuminating the primary commercial building for the pruposes [sic] of safety and protection will accentuate the problems of glare by its location immediately adjacent to the residential areas.
d. Odors released from restaurant exhausts and other uses will be generated in the area of the subject premises closest to the residential area. The concentration of such odors drifting into the residential area will necessarily be increased as a result of said location to the detriment of the residential property.
e. The greatest mass in terms of building size is located immediately adjacent to the residential structures of much different architectural style and mass.
f. The only two-story structure in the subdivision is located at the top of the steepest embankment on the premises (which artificial embankment the developer will create by extensive fill) thereby placing the office building an approximate height of 40 feet above the ground *48 level of the immediately adjacent residential properties.
g. Developer proposed a driveway which clearly services the loading and delivery area of the main building from Liberty Street which is a local, residential street in the heart of a residential area. The Board' of Commissioners finds that the primary use of this driveway will be for commercial vehicles and will concentrate commercial delivery traffic on local residential roads and require commercial vehicles to negotiate a curved driveway with a steep grade which must of necessity increase the engine noise and traffic in the residential area.
This Court has previously observed “that aesthetics and property values are legitimate considerations in a township’s exercise of its zoning power to promote general welfare.” Mont-Bux, Inc. v. Township of Cheltenham, 36 Pa. Commonwealth Ct. 397, 401 , 388 A.2d 1106, 1107 (1978). The ordinance in question here encompasses these considerations in Section 713.03 with the requirement that a development be “coordinated with nearby developments or neighborhoods,” and the facts as found by the board indicate a blatant and clear disregard of this requirement. Admittedly, the standard expressed in the ordinance could be more specific. But where, as here, there can be no doubt that the developer’s plan is drastically out of character with, and is in fact designed so as to maximize the detrimental effects on, the surrounding residential neighborhoods, I would conclude that there is sufficient ground for rejecting the plan. Moreover, I do not agree with the majority that it is unobjectionable for the developers to route the necessarily heavy commercial traffic which will service the shopping center through a residential neighborhood merely because *49 the shopping center’s “driveway itself is wholly within the commercial district. ’ ’
Finally, the majority’s decision, if taken to its logical conclusion, would mean that a governing authority, could, never reject a subdivision plan, no matter how patently detrimental it may be to the health, safety, or welfare of the community, unless a specific statutory provision explicitly prohibits the particular feature which the authority finds objectionable. To require a municipality to anticipate with such specificity every possible problem which could arise from the construction and operation of a subdivision or development is clearly unrealistic and severely limits, if it does not eliminate, the appropriate discretion of the governing authorities.
I would therefore affirm the court of common pleas.