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TOWNSHIP RIDLEY ET AL. v. RICHARD S. BELK ET AL. (08/11/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 11, 1983.

TOWNSHIP OF RIDLEY ET AL., APPELLANTS
v.
RICHARD S. BELK ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Delaware County in case of Richard E. Belk, Ellen Belk, Thomas W. Belk, Jr. and Janice L. M. Belk v. Township of Ridley, Anne E. Howanski, Armond Baroni, Anthony D. Daliessio, Joseph P. Cronin, Timothy J. Murtaugh, Nancy M. Collins, William M. McCrossan, Leroy T. Rogo, Paul G. Mattus, Peter McGinnis and Barry Mabry, No. 80-5915.

COUNSEL

Scott D. Galloway, with him Peter J. Rohana, Jr., for appellants.

Robert L. Pinto, for appellees.

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

Author: Craig

[ 76 Pa. Commw. Page 316]

The Township of Ridley appeals a mandamus order of Administrative Judge Prescott of the Court of Common Pleas of Delaware County, which directed the township to issue a grading permit to landowner Richard Belk.*fn1

The township here asserts that: (1) an action in mandamus was not the appropriate remedy to challenge the township's refusal to issue the permit, and (2) the landowner acquired no vested rights in 1975 when he applied for the permit, so that the township properly could subject his application to ordinance terms subsequently enacted in 1977.

On February 3, 1975, the landowner had filed an application with the township under Township Ordinance No. 1362, seeking a permit to change the grade of his land, which borders a creek, and on April 17, 1975, the township engineer approved the landowner's plan for filling, draining and grading the land. In late 1975, the township commissioners informed the landowner that the township would issue a grading permit after the landowner received permits from the Army Corps of Engineers (corps) and the Navigation Bureau of the Pennsylvania Department of Transportation

[ 76 Pa. Commw. Page 317]

(DOT). The landowner obtained permits from the corps, DOT and the Delaware River Basin Commission between June, 1976 and January, 1978, and in December, 1978, delivered these permits to the township manager. The manager refused to issue the township permit, however, applying zoning ordinance requirements newly adopted on January 29, 1977, which provided that alterations to topography adjacent to a floodplain require conditional use approval by the commissioners.*fn2

The landowner neither sought conditional use approval nor appealed the manager's refusal to issue the permit. Instead, he brought this mandamus action in common pleas court, seeking an order requiring the township to issue the permit.

Recently, our Supreme Court has reaffirmed that mandamus is an appropriate remedy to obtain or regain a building permit where the proposed development has complied with all requirements in effect at the time of application, and a later prohibitory amendment was not then legally "pending." Lindy Homes, Inc. v. Sabatini, Pa. , 453 A.2d 972 (1982).

Because we agree that Judge Prescott rightly found and concluded that the later ordinance terms were not "pending" in 1975 when the landowner filed his application, we need only consider whether the landowner had complied with all of the requirements of the then existing ordinance. Here, Ordinance No.

[ 76 Pa. Commw. Page 3181362]

, which was in effect in 1975, required only that a grading permit "shall be accompanied by a plan approved by the Township Engineer," and that a permit fee of five dollars accompany the application. That ordinance did not require that the applicant first obtain permits from other sources; those permits, although necessary to complete the project, simply were not prerequisites to receiving a township permit. Thus, mandamus was the proper remedy because the common pleas court found that the landowner had satisfied the requirements of Ordinance No. 1362 as it then stood.*fn3

Accordingly, we affirm the sound decision of Judge Prescott.

Order

Now, August 11, 1983, the order of the Court of Common Pleas of Delaware County, No. 80-5919, dated August 5, 1982, is affirmed.

Disposition

Affirmed.


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