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Borough of Perkasie v. Moulton Builders, Inc.
850 A.2d 778 (Pa. Cmwlth. 2004)
The Borough denied a developer's conditional use application to build an age-restricted community because it believed that the project was not close enough to a grocery store and would impermissibly increase traffic. The court reversed the Borough's decision.
The zoning ordinance regulating housing for the elderly requires the building to be "located within 1/4 mile of basic retail services, groceries and drugs particularly." The developer explained that the building was within 1/3 of a mile of a shopping center and that there would be an onsite facility with basic groceries and medications. The Borough ruled that this was not contemplated by the ordinance and denied the application. The court reversed, explaining that the Borough's decision was incorrect because the ordinance did not specify how to measure the distance between the store and the building. Also, the ordinance did no specify if the store had to be onsite or off site. Finally, because the shopping center was only 1/12 of a mile further then the ordinance specified and there was an onsite facility, the application should have been approved.
The Borough also decided that the development would impermissibly increase traffic. An expert for the developers stated that there would be little change to traffic conditions. No contradicting evidence was presented. The Borough determined that this report lacked credibility. However, the court explained that once an applicant has satisfied the minimum requirements, the application should be approved unless an adverse party submits contradictory evidence. The Court held that without contradictory evidence on the record, it was improper to deny the application.
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