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Shelbourne Square Associates, L.P. v. Board of Supervisors of Township of Exeter, Berks County

Township retained authority to deny developer's proposed access to dangerous highway despite Department of Transportation permit where developer had alternative means of access.

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SUBMITTED: March 2, 2001

Shelbourne Square Associates, L.P. (Shelbourne), a real estate development partnership, appeals from the order of the Court of Common Pleas of Berks County that sustained the decision by the Exeter Township Board of Supervisors to deny Shelbourne’s application for a commercial subdivision and development.

Shelbourne owns a 45.65-acre tract of land in Exeter Township, Berks County, located along State Route 422, a busy arterial highway. The tract is zoned commercial and partially developed for a strip shopping center. The present appeal stems from Shelbourne’s application to subdivide from the total tract a 6.32-acre lot with frontage along Route 422. Desiring direct access to Route 422 from the proposed lot, Shelbourne submitted with its subdivision application a Highway Occupancy Permit granted by the Department of Transportation (DOT) for construction of a high volume driveway *fn1 onto Route 422. Shelbourne obtained the permit from DOT prior to submitting the present subdivision application in hope of alleviating the Township’s previously announced opposition to direct access from the lot onto Route 422. The Township had made clear its position on this issue when, in February of 1999, it denied subdivision approval for a plan filed in June of 1997, proposing a similar lot at the same location.*fn2 Shelbourne did not appeal this denial. Rather, after obtaining the DOT permit, it submitted the present application to create a similar lot, which met with the same Township opposition to the proposed Route 422 access. The Township Supervisors, based on the opinion of their engineering consultant and their personal knowledge of the site, are convinced that direct access to Route 422 will present an unwarranted safety hazard. Their belief is based on the number of existing access points and the distance between them along the relevant section of the highway.

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