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WILSON WALLINGFORD v. TOWNSHIP NETHER PROVIDENCE AND JOSEPH LUGLIO (09/11/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 11, 1984.

WILSON OF WALLINGFORD, INC.
v.
TOWNSHIP OF NETHER PROVIDENCE AND JOSEPH LUGLIO, BUILDING INSPECTOR AND GARY CUMMINGS, ZONING OFFICER. TOWNSHIP OF NETHER PROVIDENCE ET AL., APPELLANTS. WILSON OF WALLINGFORD, INC. V. TOWNSHIP OF NETHER PROVIDENCE AND JOSEPH LUGLIO, BUILDING INSPECTOR AND GARY CUMMINGS, ZONING OFFICER. GEOFFREY C. SHEPARD, APPELLANT

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.

COUNSEL

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.

Author: 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 appropriate remedy? 3) Was the grant of deemed approval to Wilson by the trial court proper?

1209 C.D. 1983

We believe Mr. Shepard should be permitted to intervene under Rule 2327 and 2329 of the Pa. R.C.P.*fn5

[ 85 Pa. Commw. Page 108]

Mr. Shepard had petitioned during the pendency of the action and had done so without undue delay or prejudice to the trial. Most importantly, by permitting Mr. Shepard to intervene, we obviate any contention that his interests are not adequately represented.*fn6

1087 C.D. 1983

Significant to disposition of this appeal is Section 908(9) of the MPC which provides, in pertinent part, that, "[t]he board or the hearing officer, as the case

[ 85 Pa. Commw. Page 109]

    may be, shall render a written decision or, when no decision is called for, make written findings on the application within forty-five days after the last hearing before the board or hearing officer." (Emphasis added.) 53 P.S. ยง 10908(9). A purported written decision was rendered on June 29, 1979, seventy-four days after the last hearing before the Board and, because the appellants failed to comply with Section 908(9) of the MPC, the decision was deemed approved. Appellants, however, argue that, under the Township ordinance, if deemed approval indeed occurred, Wilson had no right to a remedy in mandamus because it failed to apply for a building permit within six months from the date of approval or, in this case, deemed approval. We believe this assertion is correct.

Section 1205 of the Township Zoning Ordinance provides that, "a special exception or variance shall expire if the applicant does not apply for a building permit within six (6) months from the date of authorization thereof." Deemed approval occurred forty-five days after the last hearing or on June 1, 1979, the forty-sixth day. Under the Zoning Ordinance, Wilson had six months from this date to apply for a building permit. Since it did not apply until at least eight months later, the special exception or variance obtained by deemed approval expired.

We have held that, under Section 908(9) of the MPC, where a zoning board failed to render a decision on an application for building permits within forty-five days of the last hearing, a conclusive presumption arises that the decision is in favor of the applicant which entitled him to building permits. Foltz Jr. v. Monroeville (Foltz I), 5 Pa. Commonwealth Ct. 304, 290 A.2d 269 (1972). In our view, Wilson had constructive notice on June 1, 1979, that the decision was deemed approved in his favor and, therefore, he had

[ 85 Pa. Commw. Page 110]

    six months from this date to comply with Section 1205 of the Township Zoning Ordinance. In Foltz v. Zoning Hearing Board of the Borough of Monroeville (Foltz II), 13 Pa. Commonwealth Ct. 309, 318 A.2d 410 (1974), we determined that when a forty-five day period ends without a decision by a zoning board on a zoning application the participants are put on notice that a decision is deemed to be rendered. We concluded, moreover, that if an appeal was taken to this Court from a decision deemed approved, the appeal period begins on the date when the decision was deemed rendered. Similarly, Wilson had six months from the date when the decision was deemed approved to apply for building permits but failed to do so.

It is irrelevant for Wilson to argue that the Board's decision was not a valid decision or that it had no knowledge of the position of the Board member who did not sign the decision until after the six month period had elapsed. Wilson participated in the Board hearings and should have known, therefore, when expiration of the forty-five days had triggered a deemed decision. Foltz II.

To be entitled to a mandamus remedy, Wilson had to demonstrate that it had a clear legal right to a remedy, the appellants had a duty that was ministerial in nature and that there was no other appropriate and adequate remedy. Valley Forge Racing Association v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972). Wilson does not meet these standards because authorization for the building permit did not exist when Wilson applied for it. Wilson, therefore, did not have a right to the permit and appellants had no corresponding duty.

The trial court erred by granting the permits to Wilson and, therefore, for the reasons set forth above, we reverse.

[ 85 Pa. Commw. Page 111]

Order

Now, September 11, 1984 the order of the Court of Common Pleas of Delaware County, dated April 5, 1983, at No. 80-9729, No. 1209 C.D. 1983, which denied appellant leave to intervene, is reversed and No. 1087 C.D. 1983, which granted Wilson building permits, is reversed.

Disposition

Reversed.


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