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CHARLES HEISTERKAMP v. ZONING HEARING BOARD CITY LANCASTER AND CITY LANCASTER (04/04/78)

decided: April 4, 1978.

CHARLES HEISTERKAMP, III, APPELLANT
v.
ZONING HEARING BOARD OF THE CITY OF LANCASTER AND CITY OF LANCASTER, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lancaster County in case of Charles Heisterkamp, III, v. Zoning Hearing Board of the City of Lancaster and City of Lancaster, Trust Book No. 43, Page 417.

COUNSEL

John P. Hohenadel, with him Richard A. Umbenhauer, and Nikolaus, Hohenadel & Greiner, for appellant.

Louis J. Farina, with him Blakinger, Grove & Chillas, P.C., for appellees.

Judges Rogers, Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 34 Pa. Commw. Page 540]

The Appellant, Dr. Charles Heisterkamp, III, appeals here from a decision of the Court of Common Pleas of Lancaster County affirming the denial by the Zoning Hearing Board of the City of Lancaster (Board) of his request for a variance. He operates a medical office and had requested a variance in order

[ 34 Pa. Commw. Page 541]

    to construct additional waiting-room space by extending the front of his building five feet beyond the setback requirement imposed by the zoning ordinance.

A hearing was held before the Board on June 7, 1976 at which time the Appellant's request for a variance was denied. Notice of this action was mailed to him on June 9, 1976, and the written findings of fact, conclusions and reasons therefor in support of the decision were mailed to him on September 27, 1976.

The Appellant argues first that without findings of fact, conclusions and reasons, there had been no "decision" within forty-five days as required by Section 908(9) of the Pennsylvania Municipalities Planning Code*fn1 (MPC), 53 P.S. § 10908(9). This section provides:

(9) 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. Except in home rule municipalities, where the application is contested or denied, 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. . . . Where the board fails to render the decision 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

[ 34 Pa. Commw. Page 542]

    in writing to an extension of time. ...


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