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APPEAL M.G.H. ENTERPRISES FROM DECISION WEST COCALICO TOWNSHIP ZONING HEARING BOARD. M.G.H. ENTERPRISES (09/05/84)

decided: September 5, 1984.

IN RE: THE APPEAL OF M.G.H. ENTERPRISES FROM THE DECISION OF THE WEST COCALICO TOWNSHIP ZONING HEARING BOARD. M.G.H. ENTERPRISES, APPELLANT


Appeal from the Order of the Court of Common Pleas of Lancaster County in case of In Re: The Appeal of M.G.H. Enterprises from the Decision of the West Cocalico Township Zoning Hearing Board, Trust Book No. 48, Page 130.

COUNSEL

James H. Thomas, Wenger, Byler & Thomas, for appellant.

Larry B. Maier, with him, Charles W. Sheidy, for appellee.

Judges Williams, Jr., Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry. Judge Williams, Jr. concurs in the result only.

Author: Barry

[ 85 Pa. Commw. Page 69]

M.G.H. Enterprises (appellant) appeals an order of the Court of Common Pleas of Lancaster County affirming a decision of the West Cocalico Township Zoning Hearing Board (Board) which denied its application for a special exception.

Appellant, the owner of an 18.62 acre tract of land located at the northwest intersection of Girl Scout Road and West Girl Scout Road in West Cocalico Township, proposes to construct and operate a forty-unit mobile home park on that site. This particular tract of land is zoned R-300 residential. Mobile home parks are permitted by special exception. Appellant's application for a special exception, however, was denied by the Board on November 15, 1982. The Court of Common Pleas of Lancaster County affirmed the Board's decision on October 6, 1983. This appeal followed.

[ 85 Pa. Commw. Page 70]

Where, as here, the trial court takes no additional evidence, our scope of review is limited to a determination of whether the Board abused its discretion or committed an error of law. Pittsburgh Outdoor Advertising, Page 70} Inc. v. Zoning Hearing Board, 70 Pa. Commonwealth Ct. 395, 453 A.2d 367 (1982).

It is one of appellant's contentions that its application should be deemed approved because the Board failed to give timely notice of its decision. It is agreed that the final hearing was held on October 18, 1982, the Board orally announced its decision on November 15, 1982. Written notice of that decision was mailed on November 19, 1982. Appellant argues that the Board failed to meet the forty-five day requirement set forth in Section 908(9) of the Pennsylvania Municipalities Planning Code*fn1 (MPC) because its written notice of November 19, 1982, although clearly within forty-five days of the final hearing, should be viewed by this Court as a nullity. Appellant's basis for this argument is Section 908(10) of MPC which states that a copy of the final decision shall be delivered to the applicant not later than a day following the decision. While it is true that the Board violated this section, it is well established that this time limit is directory rather than mandatory. Heisterkamp v. Zoning Hearing Board, City of Lancaster, 34 Pa. Commonwealth Ct. 539, 383 A.2d 1311 (1978). Therefore, by mailing written notice of the decision on November 19, 1982, the Board provided appellant with timely notice.

Appellant next argues that it met its burden of proof in showing that its proposal complied with every specific requirement of the zoning ordinance and that the Board committed a legal error in considering sight distances*fn2 and traffic standards in denying its application.

[ 85 Pa. Commw. Page 71]

An applicant seeking a special exception bears the burden of presenting evidence which will persuade the Board that the proposal complies with all of the objective requirements contained in the ordinance. Lake Adventure, Inc. v. Dingman Township Zoning Hearing Board, 64 Pa. Commonwealth Ct. 551, 440 A.2d 1284 (1982). Once that has been accomplished, the burden then shifts to the objectors who must show that the proposal would be detrimental to the ...


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