FW Triangle LP v. Zoning Hearing Board , 2003 Pa. Commw. LEXIS 146 ( 2003 )

Dissenting Opinion By

Judge McGINLEY.

I respectfully dissent to the majority’s conclusion that the Appellants must be restrained from demolishing Clime House for failure to comply with Section 255-219.B. of the Zoning Ordinance.

I also disagree with the majority’s conclusion that Gwynedd is inapposite. In Gwynedd, this Court determined that the landowner, Gwynedd Properties, Inc. (GPI), had filed no land development or subdivision plan that triggered the sections of the Subdivision and Land Development Ordinance that Lower Gwynedd Township sought to apply to prevent GPI from cutting Pennlyn Woods. This Court made this determination even though GPI had twice filed a subdivision plan.

Here, the Zoning Officer denied the Appellants application for a permit to demolish Clime House based on Section 255-219.B. of the Zoning Ordinance. This section only is relevant when a landowner seeks a conditional use permit. The Appellants did not apply for a conditional use permit. Further, as in Gwynedd, the Appellants never formally filed a plan and therefore were never required to obtain a conditional use permit. This was a request for a permit to demolish Clime House, no more, and should have been addressed on the merits.

The majority asserts that when the Appellants requested the Zoning Officer’s preliminary opinion for a proposed nonresidential development of the property that included Clime House and attached a site plan or “concept plan” to the request, Section 255-219.B. came into play and the Appellants were required to comply with Section 255-219.B. I respectfully disagree.

The August 16, 2000, letter from the attorney for Brandenburger/Sheridan Builders, Marc D. Jonas, that sought the Zoning Officer’s preliminary opinion clearly stated that “[t]his plan will not bind or commit either the property owner of the township to the plan. Our client must proceed with a land development application as the next step in the land use process.” Letter from Marc D. Jonas, August 16, 2000, at 2. I believe there was no application for land development or zoning approval. I would reverse.