Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

APPEAL WILLIAM H. PAUL AND DR. W. RICHARD KETTERING FROM DECISION LANCASTER COUNTY PLANNING COMMISSION ETC. WILLIAM H. PAUL (07/19/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 19, 1982.

IN RE: THE APPEAL OF WILLIAM H. PAUL AND DR. W. RICHARD KETTERING FROM THE DECISION OF THE LANCASTER COUNTY PLANNING COMMISSION ETC. WILLIAM H. PAUL, APPELLANT

Appeal from the Order of the Court of Common Pleas of Lancaster County in the case of In Re: The Appeal of William H. Paul and Dr. W. Richard Kettering from the decision of the Lancaster County Planning Commission on the application of the Fidelity Bank, Lancaster Arms Associates, National Development Enterprises, Berger Brothers, and/or Max Berger, Trust Book No. 46, Page 326.

COUNSEL

Kenneth C. Notturno, Notturno, Russell, Krafft & Gruber, for appellant.

Charles B. Grove, Jr., Blakinger, Grove & Chillas, P.C., for appellee, Lancaster County Planning Commission.

Lewis I. Farina, with him Richard P. Nuffort, Geisenberger, Zimmerman, Pfannebecker & Atlee, for intervenors, Lancaster Arms Associates, National Development Enterprises, Berger Brothers and Max Berger.

President Judge Crumlish and Judges Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 67 Pa. Commw. Page 509]

This is a subdivision regulation case, seeking review of an order of the Court of Common Pleas of Lancaster County, which dismissed objector William H. Paul's appeal from the Lancaster County Planning Commission's grant of certain specific waivers to developer Lancaster Arms Associates.

This case involves the Lancaster County subdivision ordinance, which is administered by the Lancaster County Planning Commission; no township, borough or city ordinance is involved. We note also that Lancaster County has no zoning ordinance and no zoning hearing board.

We must decide two issues: In this subdivision control case, what remedy does the objector have when the political subdivision has no zoning hearing board? Was it incumbent upon the objector to exhaust the administrative appeal process provided by the county ordinance?

[ 67 Pa. Commw. Page 510]

The Municipalities Planning Code (MPC),*fn1 Section 1007*fn2 provides that persons aggrieved by a municipal agency's decision permitting development on the land of another shall submit their objections to the "zoning hearing board," thus establishing a statutory procedure under which aggrieved persons may secure adjudicative review of a planning commission's action in its administration of a subdivision ordinance. See Ryan, Pennsylvania Zoning Law and Practice, Section 11.3.2 (1979). However, because Lancaster County has no zoning hearing board, MPC § 1007 cannot be applicable here.

Nevertheless, Lancaster County Subdivision Ordinance § 804.02*fn3 provides "any aggrieved person"

[ 67 Pa. Commw. Page 511]

    with an opportunity for an administrative appeal, with a public hearing, after the planning commission has taken its action on a plan. This procedure is thus analogous to zoning procedure, where an administrative appeal and hearing before a zoning hearing board is available after the zoning officer has taken his administrative action (e.g., granting or refusing a permit).

Under the Lancaster County ordinance, the so-called "waiver" of a specific design requirement is a different animal from a zoning variance; the former is an ordinance provision implementing MPC § 503(5),*fn4 authorizing flexibility in the subdivision control process, while the latter is an adjudicative departure from the ordinance authorized by statute. See MPC §§ 908, 912.*fn5

After an administrative appeal under Ordinance § 804.02, an appeal to court, not being available under MPC § 1007, is available under the Local Agency Law.*fn6 See Township of Lawrence v. Thompson, 13 Pa. Commonwealth Ct. 90, 92-93 n. 1, 318 A.2d 759, 760 n. 1 (1974). If the objector had pursued his remedy under the ordinance, he would have had standing, as an "aggrieved person," to appeal the resulting adjudication to court under 2 Pa. C.S. § 752.*fn7

However, this appeal lacks any foundation, under either the Local Agency Law or MPC. The objector, fully apprised of the waiver action because he was present at the meeting at which it was made, did not

[ 67 Pa. Commw. Page 512]

    exhaust the administrative remedy under the ordinance. Canonsburg General Hospital v. Department of Health, 492 Pa. 68, 422 A.2d 141 (1980).

Because he must be deemed to know the ordinance upon which he relies substantially, there is no basis for his claim that the ten-day period for appeal under Section 804.02 is too short.*fn8

Accordingly, we affirm the dismissal of the appeal, for failure to exhaust the administrative remedy provided.

Order

Now, July 19, 1982, the order of the Court of Common Pleas of Lancaster County, dated May 29, 1981, is hereby affirmed.

Disposition

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.