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.
[ 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 ...