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ARIE J. VAN WINGERDEN v. ARTHUR KALLATCH (05/06/86)

decided: May 6, 1986.

ARIE J. VAN WINGERDEN
v.
ARTHUR KALLATCH, ZONING OFFICER OF PLUMSTEAD TOWNSHIP, RICHARD AND GRACE L. MYERS, APPELLANTS. ARIE J. VAN WINGERDEN, APPELLANT V. ARTHUR KALLATCH, ZONING OFFICER OF PLUMSTEAD TOWNSHIP, APPELLEE



Appeals from the Order of the Court of Common Pleas of Bucks County, in case of Arie J. Van Wingerden v. Arthur Kallatch, Zoning Officer of Plumstead Township, No. 83-03588-15-5.

COUNSEL

Emory W. Buck, Grim and Grim, for appellant/appellee, Arie J. Van Wingerden.

John A. Van Luvanee, for appellants, Richard and Grace L. Myers.

James M. Neill, with him, John S. Skoutellas, for appellee Arthur Kallatch, Zoning Officer of Plumstead Township.

Judges Craig, Doyle, and Colins, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 97 Pa. Commw. Page 68]

When a development applicant has received the statutory benefit of a deemed approval because of a zoning hearing board's delay in issuing its decision pursuant to an appeal initiated before it by objectors, when does the time limitation for the objectors' appeal from that deemed decision begin to run?

In these cross-appeals from a mandamus decision by the Court of Common Pleas of Bucks County, the undisputed factual history is embodied in a stipulation, as well as in the pleadings. Developer Van Wingerden applied for and received development permission from Plumstead Township to construct a five-acre addition to an existing greenhouse. Neighboring objectors, the Myers, then appealed to the township's zoning hearing board, which concluded its hearings on March 30, 1983. Although the board voted in favor of the objectors on April 18 of that year, it issued no written decision until August 18.

On May 18, 1983, the developer had filed this mandamus action to enforce a deemed approval in his favor. The record establishes that the objectors intervened as parties in the mandamus case, pursuant to court order of October 6, 1983.

Under the statutory provision which deems a board decision to be in favor of the "applicant" if not rendered within forty-five days after the last hearing -- § 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(9) -- the trial judge here ultimately ruled that mandamus was an appropriate remedy, in accordance with Foltz v. Monroeville, 5 Pa. Commonwealth Ct, 304, 290 A.2d 269 (1972) (Foltz I), and concluded that the deemed decision must be regarded as one approving the development permission, in accordance with this court's decision in Leech v. Cater, 37 Pa. Commonwealth Ct. 29,

[ 97 Pa. Commw. Page 69388]

A.2d 1137 (1978), followed in Lefchak v. Centrella, 89 Pa. Commonwealth Ct. 301, 492 A.2d 128 (1985).

However, taking note of 42 Pa. C.S. § 5571(c)(6), the trial judge's final order, dated April 3, 1985, allowed the objectors thirty days from that date to file a statutory ...


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