Appeal from the Order of the Court of Common Pleas of Northampton County in case of Bert R. Wiggs and Elsie M. Wiggs, his wife, v. The Northampton County Hanover Township Board of Supervisors, and The Northampton County Hanover Township Planning Commission, No. 304 May Term, 1976.
Peter Rybak, for appellants.
Thomas E. Butterfield, Jr., for appellees.
Judges Rogers and Blatt, sitting as a panel of two. Opinion by Judge Rogers.
[ 32 Pa. Commw. Page 632]
Bert R. Wiggs and Elsie M. Wiggs, his wife, landowners, appeal from an order of the Court of Common Pleas of Northampton County sustaining a preliminary objection in the nature of a demurrer to, and dismissing, their petition for review in mandamus. The appellants sought an order of court requiring the respondent Supervisors of Hanover Township to affix their signatures to a subdivision plat of the appellants' land as evidence that their subdivision had township approval. The appellants' case is founded on Section 508 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508, which in pertinent part provides:
All applications for approval of a plat . . . shall be acted upon by the governing body . . . within such time limits as may be fixed in the . . . ordinance but the governing body . . . shall
[ 32 Pa. Commw. Page 633]
render its decision and communicate it to the applicant not later than ninety days after such application is filed.
(3) Failure of the governing body or agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented unless the applicant has agreed in writing to an extension of time . . . in which case, failure to meet the extended time . . . shall have like effect.
Mr. and Mrs. Wiggs say that the township failed to render a decision on their plat within ninety days and that this failure must be deemed approval.
Preliminary objections to a petition for review in the nature of a demurrer admit every well pleaded material fact. International Union of Operating Engineers v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974). We must therefore examine the petition for review. The relevant averments of that pleading are: that the appellants submitted a plat plan sketch of their proposed subdivision for township approval on April 5, 1976; that their plat was "labeled a preapplication sketch plan" by the township authorities; that their plan was in full compliance with all township zoning requirements; that in compliance with comments of township authorities at township meetings, the appellants made adjustments and additions to the plat originally submitted (1) by rotating lot boundaries so that four of the 12 lots proposed would front on a proposed new road rather than an existing public road, (2) by providing a ...