In re: Appeal of the Cutler Group, Inc.,
880 A.2d 39 (Pa. Cmwlth. 2005)
Landowner submitted an application for a conditional use permit to build seventy-two single-family homes on property largely zoned for agricultural preservation. Most of the property was zoned for agricultural preservation. The supervisors rejected the application because 1) the development would exacerbate existing dangerous traffic conditions, 2) the developer failed to comply with the ordinance’s requirements that it provide a safe on-site water supply, 3) the plan did not comport with the purpose of the agricultural preservation zone, 4) the plan did not provide an adequate stormwater recharge system, and 5) the plan did not delineate all wetlands. The trial court affirmed the decision.
Citing the longstanding rule that the governing body has full discretion to determine the weight and credibility of the evidence, the Commonwealth Court affirmed the board’s conclusions that the plan inadequately addressed stormwater and wetland issues.
However, following existing precedent, the Commonwealth Court reversed the remaining three of the board’s conclusions as follows: 1) a “location cannot be deemed unsuitable simply because the proposed use would contribute to an already dangerous traffic condition; 2) the ordinance had conflicting provisions on whether off-site water could be used in an agricultural preservation zone under the Open Space Design Option and, consequently, such conflict must be resolved in favor of the applicant; and 3) a “conditional use must be granted unless the protestants present sufficient evidence to establish that there is a high degree of probability that the use will cause substantial threat to the community,” and, in this case, the applicant satisfied the requirements of the ordinance under the Open Space Design Option that 65% of the land be preserved, and the application’s opponents failed to provide substantive testimony evidencing a substantial threat to the welfare of the community or surrounding properties.
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