Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Bert R. Wiggs and Elsie M. Wiggs, his wife v. The Northampton County Hanover Township Board of Supervisors and The Northampton County Hanover Township Planning Commission, No. 304 May Term, 1976.
B. Ryland Wiggs, III, for appellants.
Wesley M. Wasylik, for appellees.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case.
[ 65 Pa. Commw. Page 114]
Before us is an appeal brought by appellants, landowners, Bert R. and Elsie M. Wiggs of an order of the Court of Common Pleas of Northampton County denying their motion to take off a non-suit. In their motion before the court below the appellants sought to have the appellees, the Hanover Township Planning Commission and Board of Supervisors (Township), sign and thereby indicate their approval of a subdivision plan which the appellants had submitted.
The facts in this case are not in dispute. On April 5, 1976, the appellants submitted a mandatory "Pre-Application Sketch Plan" to the Township and on May 27, 1976, after reviewing the plan, the Township informed them that the proposed plan did not comport with certain*fn1 township ordinances and regulations. At a meeting of the Board of Supervisors on June 8, 1976, the appellants were again informed that certain changes were necessary in order for their plan to be approved and they then decided to submit a revised plan in part on June 18, 1976, and in final form on June 23, 1976. Finally, on August 12, 1976, the Township notified the appellants that their plan was
[ 65 Pa. Commw. Page 115]
denied because it still was not in compliance with the Township's land development regulations. The appellants then petitioned the court below in mandamus seeking to have their plan deemed approved by operation of Section 508 of the Pennsylvania Municipalities Planning Code (MPC)*fn2 which in pertinent part, provides as follows:
All applications for approval of a plat . . . whether preliminary or final, shall be acted upon by the governing body or the planning agency within such time limits as may be fixed in the subdivision and land development ordinance but the governing body or the planning agency shall render its decision and communicate it to the applicant not later than ninety days following the date of the regular meeting of the governing body or the planning agency . . . next following the date the application is filed. . . .
(3) Failure of the governing body or the planning agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented. . . .
The appellants argued below, that their plan should have been deemed approved inasmuch as more than 90 days had elapsed between their April 5, 1976 preliminary plan submission and the Township's August 12, 1976 denial. The court below, after hearing testimony, found that inasmuch as substantial changes were voluntarily made by the appellants to ...