decided: March 12, 1980.
MICHAEL J. BOBIAK ET AL., APPELLANTS
RICHLAND TOWNSHIP PLANNING COMMISSION, APPELLEE
Appeal from the Order of the Court of Common Pleas of Bucks County in case of Michael J. Bobiak and Mary I. Bobiak, husband and wife, and William P. Meyers, Wayne R. Johnson, James Tambourino and Harold E. Roberts, t/a Huntington Hollow Associates v. Richland Township Planning Commission, No. 77-4101-03-6.
Richard P. McBride, of Power, Bowen & Valimont, for appellants.
Richard A. Rosenberger, of Souder, Rosenberger, Lapp & Bricker, for appellee.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman and Judge DiSalle did not participate in the decision in this case.
[ 50 Pa. Commw. Page 78]
Michael J. Bobiak and Mary I. Bobiak, his wife, and William P. Meyers, Wayne R. Johnson, James Tambourino, and Harold E. Roberts, trading as Huntington Hollow Associates (plaintiffs) appeal the decision of the Court of Common Pleas of Bucks County, dismissing plaintiffs' exceptions to the court's denial of relief in mandamus. This action was commenced to obtain a court order requiring the Richland Township Planning Commission (Commission)
[ 50 Pa. Commw. Page 79]
to evidence approval of the preliminary subdivision plan filed by William P. Meyers and Herbert L. Luff on April 22, 1974, on the basis that the plan is deemed approved under Section 508(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508(3),*fn1 as a result of the Commission's failure to render a decision regarding their preliminary plan within 90 days of application.
On March 6, 1974, the Bobiaks agreed to sell approximately 64 acres of land to Meyers and Luff, conditioned upon the buyers' obtaining subdivision approval
[ 50 Pa. Commw. Page 80]
and obtaining the necessary financing for the purchase price. On April 22, 1974, Meyers and Luff submitted their subdivision application to the Commission. At an open meeting on July 22, 1974,*fn2 Meyers received from the Commission a copy of the township engineer's letter to the Commission regarding the engineer's review of the plan. The Commission discussed the letter's contents with Meyers but took no other action. In December 1974, Meyers and Luff terminated their interest in the Bobiak property. In December 1976, the Bobiaks agreed to sell the same property to Huntington Hollow Associates, a partnership of which Meyers is a partner. This action in mandamus followed on April 29, 1977. We reverse.
The issue is whether the presentation and discussion by the Commission of the township engineer's letter which comprises his review and comments on the proposed plan, without more, constitutes compliance with the requirement at that time in Section 508 of the MPC that "the governing body or the planning agency shall render its decision and communicate it to the applicant not later than ninety days after such application is filed."
Although, as the lower court noted, the applicant and the Commission understood that the proposed plan needed revisions, we are not convinced that the Commission acted upon the application and rendered its decision with regard to it in a manner contemplated by the MPC. Section 508 provided then, as now, that the plans are submitted for "approval" and are to be "acted upon" by the governing body which is to "render its decision." In this case, the Commission did not approve or disapprove the plan in any
[ 50 Pa. Commw. Page 81]
official manner, i.e., the Commission did not vote, did not issue its own determination as to the merits of the plan,*fn3 and did not adopt the recommendations in the township engineer's letter as its own.*fn4 Likewise, the Commission did not in any way issue or communicate its own written decision to the applicants, as required by Section 508(1) of the MPC. Informally securing the applicant's acknowledgment that revisions were necessary does not comport with the requirement that the Commission act upon an application for approval.*fn5 Cf. Petrone v. Swatara Township Board of Commissioners, 22 Pa. Commonwealth Ct. 415, 349 A.2d 500 (1975) (split vote of a governing body on an application for approval of a development plan does not constitute a decision because it does not provide a settlement or determination of the question submitted).
Since the Commission failed to render its decision in accordance with Section 508 of the MPC as to the subdivision plan filed by Meyers and Luff,*fn6 Section 508(3) requires that the application be deemed approved. Under our case law, mandamus is an appropriate method for obtaining recognition of this approval.
[ 50 Pa. Commw. Page 82]
Finally, under the particular facts of this case, we are unable to say that the passage of approximately 2 1/2 years between the time of deemed approval and commencement of this action defeats the applicant's right to mandamus. Cf. Mid-County Manor, Inc. v. Haverford Township, 22 Pa. Commonwealth Ct. 149, 348 A.2d 472 (1975) (mandamus relief available despite nearly 2-year delay between time of deemed approval by virtue of failure to act upon proposed plan and time Mid-County sought to compel issuance of building permits based on deemed approval).*fn8
And Now, this 12th day of March, 1980, the order of the Court of Common Pleas of Bucks County, dated May 23, 1978, denying the exceptions filed by Michael J. Bobiak et al. to the court's decision of January 19, 1978, is reversed, and the Court of Common Pleas is directed to enter judgment against the Richland Township Planning Commission and enter an order directing the said planning commission to approve the preliminary subdivision plans filed with the planning commission by William P. Meyers and Herbert L. Luff on April 22, 1974.
President Judge Bowman and Judge DiSalle did not participate in the decision in this case.