Appeal from the Order of the Court of Common Pleas of Northampton County in case of Francis P. Morris v. The Northampton County Hanover Township Board of Supervisors and The Northampton County Hanover Township Planning Commission, No. 316 May Term, 1976.
B. Ryland Wiggs, for appellant.
John A. Zapf, II, with him T. E. Butterfield, Jr., and Butterfield, Joachim, Brodt and Houser, for appellees.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 39 Pa. Commw. Page 467]
Francis P. Morris (appellant) appeals here from an order by the Court of Common Pleas of Northampton County which held that the failure of the Hanover Township Board of Supervisors to act within 90 days following the submission of two inconsistent subdivision plans for the same tract could not be deemed to be approval of either plan.
[ 39 Pa. Commw. Page 468]
The appellant here submitted two sets of subdivision plans regarding development of the same tract of land to the Hanover Township Board of Supervisors. The first plan, submitted on February 13, 1976, was designated "Bridle Path Woods -- Phase II" (first plan) and proposed the development of the property for an apartment complex. Because the property was zoned Residential (R-1), wherein apartment complexes were not permitted, the appellant also submitted a request to rezone the property to Residential (R-2). While this request was still pending, the appellant submitted another subdivision plan on February 27, 1976, which was designated "Hanover Knoll" (second plan), and which proposed development of the same property for forty single-family dwellings.*fn1 Shortly after the second plan was submitted, the Township's engineering firm notified the appellant by letter that neither of his subdivision applications could be accepted by the Township for preliminary approval until the requirements of the Hanover Township Subdivision and Land Development Regulations had been met and that it would hold both applications and plans until the appellant advised what he wanted to do. Following a meeting of the Board of Supervisors, the engineering firm sent another letter to the appellant stating that in accordance with its earlier letter and in accordance with the decision of the Board of Supervisors at its meeting of March 9, 1976, it was returning both applications and plan copies.
Following a public hearing in April on the rezoning request, the Board of Supervisors voted not to rezone the appellant's property to R-2. The appellant
[ 39 Pa. Commw. Page 469]
then submitted to the Hanover Township Zoning Hearing Board (Board) a substantive challenge to the validity of the Township's zoning ordinance on the basis that only 2.5% of the township was zoned for multiple family dwellings and that the ordinance was exclusionary, and, therefore, constitutionally invalid. Following a hearing on the validity challenge to the zoning ordinance, which was held in May, the appellant agreed to an extension of time until July 29, 1976 for the Board's decision on the validity challenge. Prior to that date, however, on July 8, 1976, the appellant filed a suit in mandamus in the lower court contending that his second subdivision plan was deemed approved by virtue of the non-action of the Board of Supervisors within 90 days following its submission and that, under Section 508 of the Pennsylvania Municipalities Planning Code*fn2 (MPC), it was deemed approved and he was, therefore, legally entitled to approval for that plan. On July 26, 1976, the appellant withdrew his validity challenge before the Board. On the same date he moved for summary judgment on his suit in mandamus, but the lower court dismissed this motion on the ground that the 90-day period of Section 508 of the MPC did not apply when two inconsistent plans for the same tract of land had been submitted. This appeal followed.
The appellant maintains that he is legally entitled to approval of his second subdivision plan inasmuch as it was a proper and valid application and the Board of Supervisors failed to render a decision in regard to it within the time and manner required under Section 508 of the ...