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JOHN F. BROWN v. BOROUGH COUNCIL BOROUGH EMMAUS (08/07/85)

decided: August 7, 1985.

JOHN F. BROWN, APPELLANT
v.
BOROUGH COUNCIL OF THE BOROUGH OF EMMAUS, LEHIGH COUNTY, PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of John F. Brown v. Borough Council of the Borough of Emmaus, Lehigh County, Pennsylvania, No. 82-C-970.

COUNSEL

Joseph A. Fitzpatrick, Jr., with him, Jeffrey F. Hussar, Gardner, Racines, Plunkett, Sheetz & Fitzpatrick, for appellant.

Charles J. Fonzone, for appellee.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins. Dissenting Opinion by Senior Judge Kalish.

Author: Colins

[ 91 Pa. Commw. Page 11]

John F. Brown (appellant) appeals an August 28, 1984 order of the Lehigh County Court of Common

[ 91 Pa. Commw. Page 12]

Pleas, which dismissed his exceptions to an Order of Court dated September 16, 1983, denying his requested mandamus relief. The critical issue before this Court is whether appellant's application for a subdivision plan was deemed approved by the Emmaus Borough Council (Council) because of noncompliance with the mandatory notice requirements of Section 508 of the Pennsylvania Municipalities Planning Code (Code),*fn1 or whether presence at a public hearing on the application, plus possession of minutes from the hearing, satisfies the Code provisions. The trial court held that notice here was adequate. We disagree.

Section 508 provides in pertinent part:

(1) The decision of the governing body or planning agency shall be in writing and shall be communicated to the applicant personally or mailed to him at his last known address not later than fifteen days following the decision; . . . .

Appellant owns a residentially zoned tract of property in the Borough of Emmaus, Lehigh County, Pennsylvania. He filed a residential subdivision application with the Borough and obtained approval from the Borough Zoning Officer and a recommendation from the Borough Planning Commission for final approval of his subdivision project. Appellant then sought final approval from the Council and the matter was discussed at five Council meetings held between June 15, 1981 and August 3, 1981 (three regular meetings and two public hearings). At the close of the August 3, 1981 hearing, appellant's subdivision plan was unanimously approved by a vote of the Council. The record of the hearing consists of extracted minutes rather than a transcript containing verbatim testimony. No official final written approval of the

[ 91 Pa. Commw. Page 13]

    plan was ever sent to appellant, but appellant subsequently obtained the ...


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