Appeal from the Order of the Court of Common Pleas of Erie County in the case of National Fuel Gas Supply Corporation v. Leonard N. Nowak, Secretary, City of Erie Zoning Hearing Board and Zoning Officer v. School District of the City of Erie, No. 112-A-1985.
Lawrence L. Kinter, with him, John W. Beatty, Solicitor, for appellant, School District of the City of Erie.
Gene P. Placidi, City Solicitor, for appellant/appellee, Leonard N. Nowak.
Russell S. Warner, with him, Norman H. Stark, MacDonald, Illig, Jones & Britton, for appellee, National Fuel Gas Supply Corporation.
Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
[ 95 Pa. Commw. Page 444]
Leonard N. Nowak, City of Erie Zoning Officer, and the School District of Erie each appeal from the order of the Court of Common Pleas of Erie County granting summary judgment to National Fuel Gas Supply Corporation (NFG) on its action in mandamus to compel the city to issue a zoning permit to NFG as a result of the city's failure to render a decision on NFG's zoning application within the 45-day period required by section 908(9) of the Pennsylvania Municipalities Planning Code (MCP),*fn1 providing in relevant part:
The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the board or hearing officer. . . . Where the board fails to render the decision within the period required by this subsection,
[ 95 Pa. Commw. Page 445]
or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing to an extension of time.
Pursuant to Pa. R.A.P. 1736, the city's appeal to this court automatically superseded the trial court's mandamus order.
A summary of the uncontested facts follows: On October 24, 1984, the city directed its solicitor to prepare an amendment to its zoning ordinance concerning the drilling, maintenance and production of gas wells within the city limits. NFG desired to drill a commercial gas well on property within the city. The property in question is zoned C-2 General Business District. On October 29, 1984, NFG applied to the city's zoning hearing board for approval of its proposed gas well as a use similar to permitted uses, under the Erie Zoning Ordinance § 305.54, which provides:
Business uses similar to permitted uses in C-2 and C-3 districts not otherwise specified shall be referred to the zoning hearing board ...