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TOWNSHIP MONTGOMERY v. MARKET CENTER REALTY CO. (03/22/74)

decided: March 22, 1974.

TOWNSHIP OF MONTGOMERY, APPELLANT,
v.
MARKET CENTER REALTY CO., APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Market Center Realty Co. v. The Township of Montgomery, No. 72-08513.

COUNSEL

William R. Cooper, with him Stewart J. Greenleaf, for appellant.

Leonard Dubin, with him John P. Knox, Timony, Knox, Avrigian & Hasson and Blank, Rome, Klaus & Comisky, for appellee.

Judge Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 12 Pa. Commw. Page 450]

This appeal is from an order of the Court of Common Pleas of Montgomery County which directed Montgomery Township (Appellant) to consider the shopping center development application filed by Market Center Realty (Appellee) approved because it was not decided within ninety days of its filing as mandated by Section

[ 12 Pa. Commw. Page 451508]

of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508.

In reviewing the record, we find the following chronology of events which led to the controversy. Appellee, as equitable owner of a 44 acre tract of land in Montgomery Township zoned "S" Shopping Center, filed an initial development plan on November 26, 1971, which proposed to build a shopping center on 29.8 acres. After numerous hearings, Appellant denied the application on April 3, 1972. A second application then was filed by Appellee on May 30, 1972, which was denied, without further hearings, on July 3, 1972.

Timely appeal was taken to the Court of Common Pleas of Montgomery County pursuant to Section 1006(1)(a) of the MPC from this second rejection. On November 8 and 9, 1972, Judge Cirillo conducted a hearing at which Appellee introduced additional evidence intended to meet the objections of the Township relative to the development plan's provision for a traffic, drainage and screening. After hearing one witness, however, the Court remanded the case to the Board of Supervisors to reconsider the application on the basis of this additional evidence and accommodations submitted by Appellee.

Despite the court's directive that hearings on this remand be conducted "as soon as practically possible," only one hearing was held before Judge Cirillo issued a supplemental order on January 10, 1973, that hearings begin January 19, 1973, and continue daily until a decision was rendered. Three hearings were conducted by the Board of Supervisors from January 16th to February 1, 1973. The Supervisors rejected the plan on April 15, 1973, or shortly thereafter. Written notice of this decision, as formalized by a resolution adopted by the Supervisors on May 6, 1973, and certified to the court below on May 8, 1973, was not communicated

[ 12 Pa. Commw. Page 452]

    to Appellee until May 11, 1973. On May 22, 1973, Judge Cirillo ordered the application approved and building permits issued because the Supervisors had failed to render its decision within ninety days of its ...


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