Appeal from the Order of the Court of Common Pleas of Berks County in case of Phillip G. West and Betty A. West, his wife v. Colebrookdale Township Zoning Hearing Board and Daniel E. Unger and Thelma Unger, his wife, No. 164 August, 1981 A.D.
John T. Forry, with him, William R. Forry and Arthur E. Grim, for appellants.
Mervin A. Heller, Jr., for appellees.
Judges Craig, Barry and Blatt, sitting as a panel of three. Opinion by Judge Craig.
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In this zoning case, the Ungers, as objectors to a requested zoning approval, have appealed from an order of the Court of Common Pleas of Berks County which dismissed a statutory zoning appeal, originally filed by the Wests as the zoning approval applicants, in which the objectors had intervened in order to oppose a decision of the Colebrookdale Township Zoning Hearing Board deemed by law to be in favor of the applicants under section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(9), applicable when a board decision has been entered later than forty-five days after the last date of hearing.
Judge Saylor, for the trial court, noting that the objectors filed no appeal of their own against the deemed decision, concluded that the applicants' statutory
[ 83 Pa. Commw. Page 324]
appeal, directed only against the board's tardy written decision purporting to be adverse to them, could not be used by the objectors, in that the proceeding was a nullity because the applicants, necessarily not aggrieved by the deemed decision in their favor as a matter of law, lacked standing to initiate it. Foltz v. Borden, 22 Pa. Commonwealth Ct. 562, 349 A.2d 918 (1976) (Foltz III).
The Wests, as applicants here, had sought zoning approval for a service center, related to alcoholic rehabilitation, in an R-3 Residential District as an "education use."
In view of the pertinence of Foltz III, the similarity of the factual history of that case to the present one is notable.
Both Foltz III and this case began with applicant landowners filing zoning hearing board appeals from the respective zoning hearing officer's denials of their permit applications.
In both cases, the zoning hearing board held timely hearings on the requests, with the objectors participating in the hearings ...