K. Hovnanian Pennsylvania Acquisitions, LLC v. Newtown Township Board of Supervisors, 954 A.2d 718 (2008).

Applicant’s conditional use application was denied because it failed to comply with all the requirements of the ordinance.
Case Details:

Hovnanian owned 19.2 acres in a High Density Residential district. Hovnanian filed a conditional use application proposing to develop elderly housing. Elderly housing is permitted by the ordinance provided certain conditions are met including that there be particular features and facilities to serve the needs and interests of the elderly and that there be ready access to existing commercial and professional areas.  In Hovnanian’s application, they proposed two cul-de-sacs, which were not in conformance with ordinance requirements, a walking trail, and bocce court.  There were no curbs and sidewalks and no street with sidewalks between the proposed development and the commercial and professional facilities.

The Board denied the application based on the findings that there were not facilities geared specifically toward the elderly, there was no ready access to commercial and professional facilities and the proposed cul-de-sacs exceeded the maximum length.  Further, the Board found that the proposal would be detrimental to the neighboring properties due to traffic congestion and hazards.

Hovnanian appealed to the trial court and asked to supplement the record with evidence of the Board’s bias.  Hovnanian supplemented the record with evidence of the Board’s recent approval of other elderly housing applications.  The trial court rejected the assertion of bias by the Township, and found that the other approved applications met the requirements set forth in the ordinance.

Hovnanian appealed to the Commonwealth Court arguing that the Township appointed a special solicitor without any statutory authority, which resulted in a biased tribunal.  Hovnanian claimed that the appointment of a special solicitor is not authorized in the MPC or in the Ordinance and the Township did not appoint a special solicitor in any of the other conditional use proceedings.  The Township claimed that it had a right to participate as a party and had authority to appoint a special solicitor to avoid the appearance of impropriety.  The Commonwealth Court found that because the trial court conducted a full review of the matter, any potential due process problems were cured.

A conditional use applicant bears the initial burden of proving compliance with the ordinance. The burden then shifts to objectors to show that the use would be detrimental to the public health, safety or welfare.  Hovnanian argued that it met all the criteria set forth in the ordinance. However, Hovnanian did not show facilities for the elderly or access to commercial facilities.  Further, the proposed cul-de-sacs did not comply with the ordinance and, although, Hovnanian could have applied for waivers, they did not.  Therefore, the Commonwealth Court affirmed the denial of the conditional use application.

Date of Decision: 7/25/08

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