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H.R. MILLER CO. v. CHARLES F. BITLER (10/29/75)

decided: October 29, 1975.

H.R. MILLER CO., INC. AND H. RAYMOND MILLER
v.
CHARLES F. BITLER, JR., ZONING OFFICER OF LANCASTER TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA. H.R. MILLER CO., INC., APPELLANT



Appeal from Order of the Court of Common Pleas of Lancaster County in case of H.R. Miller Co., Inc., and H. Raymond Miller v. Charles F. Bitler, Jr., Zoning Officer of Lancaster Township, Lancaster County, Pennsylvania, No. 30 October Term, 1974.

COUNSEL

Nevin Stetler, with him Stuart M. Neely, and Stetler & Gribbin, for appellant.

Louis J. Farina, with him May, Grove, Stork & Blakinger, for appellee.

President Judge Bowman and Judges Kramer and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 21 Pa. Commw. Page 467]

This is an appeal by H.R. Miller Co., Inc., and H. Raymond Miller (collectively referred to as Miller) from an order of the Court of Common Pleas of Lancaster County which dismissed Miller's complaint in mandamus. The complaint had requested that the court order the appellee, Charles F. Bitler, to issue permits authorizing Miller to expand pre-existing quarrying operations and to commence new quarrying operations.

On August 21, 1972, Miller requested that the Zoning Hearing Board of Lancaster Township conduct a hearing to resolve certain questions of law and fact relative to his quarrying activities. Along with Miller's request for a hearing, five specific questions were propounded by Miller and submitted to the Board. Extensive hearings were held on three separate days, concluding on January 9, 1973. On April 17, 1973, 98 days after the final hearing, the Board's "Decision" was issued. The decision provided specific answers to the five questions propounded by Miller, all of the answers being adverse to Miller's plans.

On September 12, 1974, Miller applied for the permits in question. Bitler (on September 23, 1974) refused to issue them, and Miller filed the instant action in mandamus, alleging a clear legal right to the permits and a corresponding clear legal duty on the part of Bitler to issue them. The parties agree upon the fundamental requirements for relief in mandamus*fn1 and the only issue is whether those requirements are met.

Miller argues that the right to the permits follows from the application of Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July

[ 21 Pa. Commw. Page 46831]

, 1968, P.L. 805, as amended, 53 P.S. ยง 10908, which provides in pertinent part 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 after the last hearing before the board or hearing officer. . . . Where the board has power to render a decision and the board or the hearing officer, as the case may be, fails to render the same within the period required by this subsection, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing to an extension of time." (Emphasis added.)

Miller contends that since the Board did not answer the five questions posed to it within 45 days, we are bound by a conclusive presumption that the questions were resolved in favor of Miller. See Humble Oil and Refining Company v. East Lansdowne Borough, 424 Pa. 309, 227 A.2d 664 (1967) and Foltz v. Monroeville, 5 Pa. Common wealth Ct. 304, 290 A.2d 269 (1972). A reading of the questions would lead, inter alia, to conclusions that ...


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