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decided: April 18, 1980.


Appeal from the Order of the Court of Common Pleas of Perry County in case of Raccoon Mountain, Incorporated v. Perry County Planning Commission, Civil Action No. 78-1352.


P. Richard Wagner, with him Mancke & Lightman, for appellant.

William R. Bunt, for appellee.

Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 50 Pa. Commw. Page 614]

Raccoon Mountain, Incorporated (developer) appeals from an order of the Court of Common Pleas of Perry County sustaining a demurrer by Perry County Planning Commission (commission) to developer's complaint in mandamus, which alleged that the developer's pre-application (sketch) plan and alteration request should be deemed accepted by the commission because the commission failed to act on them within ninety days, as required by 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).

[ 50 Pa. Commw. Page 615]

In April, 1978, developer had filed with the Perry County Planning Commission a pre-application plan of developer's intended subdivision of a 220-acre tract of land located in Tuscarora Township, Perry County. The commission took no action on that plan until September 20, 1978, when the commission denied developer's request, more than four months after it was submitted.

Developer contends that Section 301 of the Perry County Subdivision and Land Development Ordinance (Ordinance) makes submission of the pre-application plan a mandatory first step in a three-step application process. Therefore, developer reasons that its filing triggered the ninety-day period of MPC § 10508(3), so that a deemed approval resulted.

We disagree because a full reading of Section 301 of the Ordinance, set forth verbatim in a footnote,*fn1 reveals

[ 50 Pa. Commw. Page 616]

    a two-step procedure, with the pre-application plan being only an optional consultation before the first official application step -- the preliminary plat.

The first sentence of Section 301 plainly says that an applicant "may prepare" a pre-application plan and "shall prepare" the preliminary and final plats. Some ambiguity is introduced when, following the "shall prepare" language, the first subsection thereunder again mentions the pre-application plan, with subsections as to the preliminary and final plats below it.

However, study of all those subsections confirms the optional nature of the pre-application plan, as indicated in the first sentence by the word "may", quoted above. Subsections 1, 2 and 3 of Section 301 are primarily intended to refer the applicant to those other sections of the Ordinance which govern the contents of a pre-application plan, preliminary plat, or final plat. Moreover, subsection 2(a) of Section 301 explicitly sets forth the procedure to be followed in preparing a preliminary plat when a pre-application plan is not filed. Therefore, subsection 2(a), by clearly acknowledging that the pre-application plan is not inevitable, defeats developer's argument that submission of such a sketch plan is a mandatory step when applying for a subdivision approval under the Perry County Land Ordinance.

Mid-County Manor, Inc. v. Haverford Township, 22 Pa. Commonwealth Ct. 149, 348 A.2d 472 (1975), is clearly distinguishable. There, unlike the present case, that particular ordinance set forth a three-step procedure

[ 50 Pa. Commw. Page 617]

    which made submission of a sketch plan a mandatory and official step in the application process.

Accordingly, we affirm the decision of the lower court.


And Now, this 18th day of April, 1980, the order of the Perry County Court of Common Pleas, dated March 8, 1979, is affirmed.



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