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RUSSELL v. PENN TOWNSHIP PLANNING COMMISSION (04/12/73)

decided: April 12, 1973.

RUSSELL
v.
PENN TOWNSHIP PLANNING COMMISSION, ET AL.



Appeal from the Order of the Court of Common Pleas of Butler County in case of John E. Russell v. Penn Township Planning Commission and Penn Township Supervisors, A.D. No. 3, June Term, 1970.

COUNSEL

Lee A. Montgomery, with him Galbreath, Braham, Gregg, Kirkpatrick, Jaffe & Montgomery, for appellants.

Leo M. Stepanian, with him Brydon & Stepanian, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 8 Pa. Commw. Page 430]

This case comes before us engulfed in somewhat of a procedural morass. John E. Russell (Russell) is the owner of a 122 acres tract of land located in Penn Township (Township). Russell decided that he wished

[ 8 Pa. Commw. Page 431]

    to use this tract of land as a mobile home park and submitted an application for a conditional use to the Township Planning Commission for its consideration. The Township Zoning Ordinance permits mobile home parks as a conditional use anywhere in the Township and establishes specific standards which an applicant must meet. Such uses will be permitted " by the Township Supervisors after a public hearing, report, and recommendation by the Planning Commission. . . ." (Emphasis added.)

Although § 1202-1 of the Zoning Ordinance specifically requires the Planning Commission to hold a hearing on any application for the approval of a conditional use, the Planning Commission held no hearing but merely rejected Russell's application because his plans "did not comply with the Land Sub-Division Laws and Zoning Ordinances of Penn Township." Instead of presenting his application to the Township Supervisors, as provided in the Zoning Ordinance, or bringing an action in mandamus to force the Planning Commission to abide by that Ordinance and hold a hearing, Russell filed an appeal with the Court of Common Pleas of Butler County from the Planning Commission's refusal to grant a conditional use. That court issued an order on August 4, 1970 requiring the Planning Commission to hold a hearing on Russell's application within 45 days and to render a final decision, including findings of fact and conclusions of law, within 30 days after the hearing. The court further provided that any party aggrieved by the final decision of the Planning Commission could appeal directly to that court.

On September 4, 1970, the Planning Commission held the required hearing and on November 4, 1970, 61 days later, the Planning Commission rejected Russell's application in a letter addressed to the lower court. Formal findings of fact were not filed until January

[ 8 Pa. Commw. Page 43221]

, 1971. Russell renewed his appeal to the lower court and that court then held a further hearing on his application. On July 5, 1972, the lower court issued an opinion and order holding that the failure of the Planning Commission to file its report until 61 days after the date of its hearing violated the 45-day rule of Section 908(9) of the Pennsylvania Municipalities Planning Code (hereinafter MPC), Act of July 31, 1968, P.L. 805, 53 P.S. § 10908(9). The court held, therefore, that the Planning Commission was deemed to have approved Russell's application and it was ordered to approve the application as filed. We must reverse.

At the time in question,*fn1 Section 908(9) of the MPC read as follows: "The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within forty-five days. Each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. If the hearing is conducted by a hearing officer, and there has been no stipulation that his decision or findings are final, the board shall make his report and recommendations available to the parties and the parties shall be entitled to make written representations thereon to the board ...


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