Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Quality Food Markets, Inc. v. Zoning Hearing Board of South Lebanon Township, No. 2334 of 1978.
Melvin E. Newcomer, Barley, Snyder, Cooper & Barber, for appellant.
Joel M. Breitstein, for appellee.
Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. President Judge Bowman did not participate in the decision in this case.
[ 50 Pa. Commw. Page 570]
Quality Food Markets, Inc. (appellant) appeals from an order of the Court of Common Pleas of Lebanon County which upheld a refusal by the Zoning Board of South Lebanon Township (Board) of the appellant's request for a special exception.
The appellant owns a tract of land in South Lebanon Township on which there is a small convenience-type grocery store. Desiring to install self-service gasoline pumps on the property, the appellant sought a special exception pursuant to the existing zoning ordinance. After the Zoning Hearing Officer of South Lebanon Township denied the permit, the appellant appealed to the Board. On May 18, 1978, a public meeting was held at which testimony was received and which concluded with a statement by the Board chairman that no more testimony would be heard and that the decision would have to be rendered within 45 days unless the appellant agreed to an extension of time.
[ 50 Pa. Commw. Page 571]
On June 1, 1978, another meeting of the Board was held for what the Board chairman referred to as "deliberation and discussion among the Board members", and at which he indicated that all of the evidence had already been taken at the meeting on May 18. At the conclusion of the June 1 meeting and while the appellant's counsel was present, an oral announcement of the Board's decision denying the appellant's request was made, but no written decision was rendered until July 17, 1978.
On appeal to the Court of Common Pleas the appellant argued that the Board's decision should be reversed because (1) it was not rendered within 45 days of the May 18 meeting as required by Section 908(9) of the Pennsylvania Municipalities Planning Code*fn1 (MPC) and (2) the appellant was entitled to a special exception as a matter of law. Without taking additional testimony the court affirmed the Board's decision on the grounds that (1) although the May 18 meeting was the final hearing and the decision had to be rendered within 45 days of that date, the announcement of the decision on June 1 when the appellant's counsel was present satisfied the MPC's requirement and (2) the Board's findings on the proposed use were supported by the record and no error of law was made with respect to the Board's decision.
In this appeal the appellant once again argues that it is entitled to the special exception because the Board failed to issue a written decision within 45 days of the hearing on May 18.
Section 908(9) of the MPC provides in pertinent part:
(9) The board or the hearing officer, as the case may be, shall render a written decision . . . on the application within forty-five days after the ...