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MERLE V. ZIMMER AND ELK TRAILS ASSOCIATES v. SUSQUEHANNA COUNTY PLANNING COMMISSION (07/17/74)

decided: July 17, 1974.

MERLE V. ZIMMER AND ELK TRAILS ASSOCIATES, APPELLANTS,
v.
SUSQUEHANNA COUNTY PLANNING COMMISSION, APPELLEE, AND JAMES P. WALKER, FRANK SURACI, MILTON BAINBRIDGE, FRANK HEMELRIGHT, KIEFF R. LOCKWOOD, SELWYN SCHMITT, JAMES BARRETT, KEN JONES, JOHN MCCOLE, GEORGE L. BLICKENS, EARL LOWRY, THOMAS MCBRIDE, ENNO LAHNEMANN, SKY HAVEN, INC. AND PAULUS BERENSOHN, INTERVENING APPELLEES



Appeal from the Order of the Court of Common Pleas of Susquehanna County in case of Merle v. Zimmer and Elk Trails Associates v. Susquehanna County Planning Commission, No. 71 January Term, 1973.

COUNSEL

Holbrook M. Bunting, Jr., with him, of counsel, Trevaskis, Doyle, Currie, Nolan & Bunting, for appellants.

John R. Morgan, with him Ulric J. McHale and Hobbs, Morgan and DeWitt, for appellee.

Ernest Preate, Jr., with him Levy, Preate & Purcell, for intervening appellees.

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

Author: Bowman

[ 14 Pa. Commw. Page 436]

This case turns upon a determination of the event from which a landowner must compute the time within which he may appeal from a decision of a zoning board to a court of common pleas under the applicable statute.

Merle Zimmer, appellant, is the owner of a 200 acre tract in Clifford Township, Susquehanna County, and a general partner of Elk Trails Associates, developer

[ 14 Pa. Commw. Page 437]

    of said tract and co-appellant. Susquehanna County has adopted a Subdivision Regulation Ordinance (Ordinance), and a comprehensive plan, both of which affect the subject premises.

Appellants had prepared and recorded on December 7, 1971, a subdivision and land development plan for the subject premises. On March 15, 1972, appellee, Susquehanna County Planning Commission, advised appellants that the recorded plan might be subject to the provisions of the Ordinance. On May 5, 1972, appellants made application to the Planning Commission for review of its plan.

On June 6, 1972, the Planning Commission voted to disapprove appellants' application for review, and mailed notice of said decision to appellants on June 9, 1972, together with a list of reasons supporting its decision. Rather than appealing this decision, appellants sought further review of the application by supplying further information to appellee and requesting that further discussions be held. On September 26, 1972, the Planning Commission found no reason to reconsider its decision of June 6, 1972, and informed appellants of same by letter dated and mailed on October 16, 1972. The October 16 letter was received on October 18, 1972, by appellants.

Appellants treated the September 26 decision as a final adverse decision of the Planning Commission, and filed an appeal therefrom in the Court of Common Pleas of Susquehanna County on November 17, 1972. Preliminary objections were filed by appellee in the court below in the nature of a motion to dismiss for want of timeliness. The ...


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