Appeals from the Order of the Court of Common Pleas of Delaware County in the case of Wilson Wallingford, Inc. v. Township of Nether Providence and Joseph Luglio, Building Inspector and Gary Cummings, Zoning Officer, No. 80-9729.
John W. Wellman, with him, Denis M. Dunn, Petrikin, Wellman, Damico, Carney & Brown, for appellants.
Harry F. Dunn, Jr., Dunn and Miller, for appellee.
Geoffrey C. Shepard, for Amicus Curiae.
Judges Williams, Jr., Barry and Blatt, sitting as a panel of three. Opinion by Judge Barry.
[ 85 Pa. Commw. Page 106]
The Township of Nether Providence, Joseph Luglio, the building inspector and Gary Cummings, the zoning officer (appellants) initiated this appeal from an order by the Court of Common Pleas of Delaware County which, by writ of mandamus, directed officials of the Township of Nether Providence (Township) to issue building permits to Wilson of Wallingford, Inc. (Wilson), appellee, for the erection of storage tanks on its property.
Wilson has used its property in the Township primarily for the storage and distribution of fuel oil. In August, 1978, Wilson applied for a special exception and/or variance and/or expansion of a non-conforming use. Eight public hearings were held before the Zoning Hearing Board (Board) of the Township. At the final hearing on April 16, 1979, Wilson, and area residents who opposed the application, were granted the opportunity to submit memoranda of law and, subsequently, both parties agreed to a one week extension for submission of briefs.
On June 29, 1979, the Board rendered a written decision, signed by only one member of the two member Board,*fn1 which denied Wilson's application. On appeal to the trial court, Wilson contended that the June 29, 1979, decision was not made within forty-five days as required by Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC).*fn2
Eight months later Wilson asked the appellants to issue a building permit to erect the storage tanks and the appellants refused because the Board's decision had not been rendered in Wilson's favor. Shortly thereafter, Wilson filed a complaint in mandamus and, on July 26, 1982, the trial court directed the appellants
[ 85 Pa. Commw. Page 107]
to issue the permit to Wilson. Exceptions to this order were timely filed. A petition to intervene*fn3 was subsequently filed on behalf of George Shepard, an area resident, in September of 1982. On April 5, 1983, the trial court dismissed the exceptions as well as the petition to intervene. It reasoned that the writing submitted by the Board was not a valid decision under the Township Zoning Ordinance*fn4 because it was signed by only one board member. The board, therefore, failed to render a decision within forty-five days as required by Section 908(9) of the MPC which deemed the decision approved in favor of Wilson.
Our scope of review in a mandamus action is to determine whether the trial court abused its discretion or committed an error of law and whether sufficient evidence supports its findings. Charley v. Felzer, 59 Pa. Commonwealth Ct. 150, 428 A.2d 1052 (1981). We must resolve three issues: 1) Did appellant Shepard have a right to intervene? 2) Is mandamus an ...