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CARL PACKARD v. COMMONWEALTH PENNSYLVANIA (03/05/81)

decided: March 5, 1981.

CARL PACKARD, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Upper Macungie Township v. Carl Packard, No. 588-S/1978.

COUNSEL

W. Hamlin Neely, for appellant.

William E. Schantz, with him C. Steven Miller, Snyder, Doll & Schantz, P.C., for appellee.

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

Author: Williams

[ 57 Pa. Commw. Page 323]

This case comes before the Court on an appeal by the landowner*fn1 from a decision of the Lehigh County Court of Common Pleas, adjudging him guilty of summary violations of the Upper Macungie Township Zoning Ordinance. We affirm.

In the spring of 1974, appellant Packard made application to the township zoning officer for a permit to locate his mobile home in an area zoned CC-Commercial. The officer refused to issue the permit, because the zoning ordinance allows such a structure in a CC-Commercial district only by special exception, which must be granted by the township zoning hearing board (Board).

Packard made a timely appeal to the Board, which duly advertised the hearing. Three members of the Board heard Packard's case on October 23, 1974. At a November 27, 1974 public meeting, the same Board members unanimously voted to deny the application; the Board secretary recorded those votes adjacent to the initials of the voting members on the cover of the Packard file. By letter dated December 5, 1974, the solicitor for the Board informed Packard that his application was denied and that he should remove from

[ 57 Pa. Commw. Page 324]

    the pertinent property a mobile home which was parked there at that time.

No further developments occurred in the case until June, 1978, when the township zoning officer discovered a mobile home on the same premises. Pursuant to that discovery, township solicitor sent another letter to Packard, in which he advised appellant that failure to remove the structure by July 7 would result in the issuance of citations against him for violations of the Zoning Ordinance. Appellant did not remove the mobile home by the appointed day, and shortly thereafter was charged, inter alia, with violating several sections of the Zoning Ordinance.

At a hearing before the district magistrate, the appellant was found guilty of some of the charges, and duly fined. He appealed that determination to the Common Pleas Court, raising as defenses (1) innocence by virtue of the "deemed" approval provision of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10908(9), (2) a type of unclean hands defense, based on the allegation that the township had failed to comply with its own ordinance,*fn2 and (3) other equitable defenses inapplicable to a summary offense. Appellant did not question the existence of a "decision," nor did he request a remand for the issuance of findings. Rather, he alleged, as he does before this Court, that the procedural defects were sufficiently egregious to negate the validity of the decision.

The lower court found, inter alia, that the Board Solicitor's letter satisfied the statutory requirement that a decision be ...


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