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DANWELL CORPORATION v. ZONING HEARING BOARD PLYMOUTH TOWNSHIP (08/20/87)

decided: August 20, 1987.

DANWELL CORPORATION, VALLEY FORGE INDUSTRIES, INC., AND ASPHALT PAVING AND SUPPLY COMPANY, APPELLANTS
v.
ZONING HEARING BOARD OF PLYMOUTH TOWNSHIP, D. FRANCIS PAGNOTTI, WILLIAM D. CULP, BERNARD TOTH AND CHARLES P. GROHOSKI, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Danwell Corporation, Valley Forge Industries, Inc. and Asphalt Paving and Supply Company v. Zoning Hearing Board of Plymouth Township, D. Francis Pagnotti, William D. Culp, Bernard Toth and Charles P. Grohoski, No. 85-11788.

COUNSEL

Edward J. Hughes, with him, John G. Kaufman, for appellants.

Herbert F. Rubenstein, for appellee, Plymouth Township Zoning Hearing Board.

Arthur Lefkoe, Wisler, Pearlstine, Talone, Craig and Garrity, for appellee, Plymouth Township.

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

Author: Craig

[ 108 Pa. Commw. Page 533]

Landowners Danwell Corporation, Valley Forge Industries, Inc. and Asphalt Paving and Supply Company appeal from an order of the Court of Common Pleas of Montgomery County, dismissing their complaint in mandamus. The landowners had requested the trial court to order the Zoning Hearing Board of Plymouth Township to enter a deemed approval of their application for special exception because of the board's failure to render a decision within forty-five days of the hearing, as provided by section 908 of the Pennsylvania Municipalities Planning Code (MPC).*fn1 We affirm.

The key question is whether an evenly-divided vote by a zoning hearing board in a case involving special exception and interpretation issues, embodied in a writing

[ 108 Pa. Commw. Page 534]

    issued by the board, constitutes a denial of the request and, as such, a decision within the time limit of section 908 of the MPC.

The landowners had filed, with the board, an application for a special exception and for an interpretation of the Plymouth Township Zoning Ordinance to allow construction and operation of a trash transfer station on seventeen acres of land located in the township's Limited Industrial District.

The landowners presented their case to the zoning hearing board on May 29, 1985. On June 10, 1985, when the four-member board met in a public session, two members voted in favor of the application and two members voted against the application. On July 8, 1985, forty days after the hearing, the board issued a written document*fn2 denying the application. Only two of the four board members signed that document.

In the landowner's mandamus action, the trial court determined that the board's written document which it had issued after a tie vote did not constitute a "decision," citing Petrone v. Board of Commissioners of Swatara Township, 22 Pa. Commonwealth Ct. 415, 349 A.2d 500 (1975). Consequently, the trial court ordered the approval of ...


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