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APPEAL LARRY BUCHSBAUM FROM DECISION BOROUGH COUNCIL JENKINTOWN BOROUGH (05/17/88)

decided: May 17, 1988.

APPEAL OF LARRY BUCHSBAUM FROM DECISION OF THE BOROUGH COUNCIL OF JENKINTOWN BOROUGH, PENNSYLVANIA DENYING APPLICATION FOR PRELIMINARY PLAN OF SUBDIVISION. LARRY BUCHSBAUM, APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Appeal of Larry Buchsbaum from decision of the Borough Council of Jenkintown Borough, Pennsylvania, denying application for preliminary plan of subdivision, No. 86-5959.

COUNSEL

Kenneth D. Berman, Lesser & Kaplin, P.C., for appellant.

Stephen P. Imms, Jr., with him, Frank W. Jenkins, Jenkins, Tarquini & Jenkins, for appellee.

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

Author: Narick

[ 116 Pa. Commw. Page 220]

Larry Buchsbaum (Appellant) filed a statutory appeal under Section 1006 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11006, seeking deemed approval of his preliminary subdivision plan for the failure of the Borough Council of Jenkintown Borough to notify him of its final decision denying his plan within the 15-day period mandated by Section 508(1) of the MPC, 53 P.S. § 10508(1). The Court of Common Pleas of Montgomery County dismissed his appeal, holding that Appellant had pursued an incorrect method of obtaining relief by using the statutory appeal process instead of the appropriate action in mandamus.

Appellant filed an application on April 3, 1985 for approval of a preliminary plan of subdivision for a parcel of land in Jenkintown. The plan proposed the subdivision of the property into three lots upon which two attached townhouses were to be built, with an existing house remaining. On October 28, 1985, the Borough Council voted to disapprove the plan because it would create a non-conforming condition on the lot. Written notice of the disapproval was sent to Appellant on November 9, 1985. Prior to receiving that notice, Appellant submitted a revised plan to the Borough on November 6, 1985. This revised plan was disapproved on February

[ 116 Pa. Commw. Page 22124]

, 1986, based upon a failure to provide the required rear yard for lot number 3. The following day, Appellant wrote a letter to the Council President requesting that the plan again be brought before Council at the March 24, 1986 regular meeting. On March 10, 1986, the Building and Zoning Committee voted not to have the request placed on the next council meeting agenda. On March 12, 1986, the Council mailed a letter to Appellant notifying him of this decision. Appellant filed a notice of appeal in the court of common pleas from that decision, alleging that the Council had failed to make a timely decision, thereby resulting in a deemed approval of his preliminary subdivision plan. This appeal followed that court's dismissal of Appellant's statutory appeal.

We are asked to decide whether mandamus is the exclusive remedy for one seeking deemed approval of a subdivision plan where a municipality has failed to render a timely decision denying the plan.*fn1 The common pleas court based its decision on the language in this Court's opinion in Croft v. Board of Supervisors of Middletown Township, 76 Pa. Commonwealth Ct. 488, 464 A.2d 625 (1983), wherein we reversed a trial court's dismissal of a mandamus action seeking deemed approval, declaring mandamus to be an appropriate remedy.

We have, certainly, recognized that mandamus is an available, if not the preferred remedy. See, e.g., Danwell v. Zoning Hearing Board of Plymouth Township, 108 Pa. Commonwealth Ct. 531, 529 A.2d 1215 (1987); Van Wingerden v. Kallatch, 97 Pa. Commonwealth Ct. 66, 508 A.2d 1295 (1986); Croft; Bensalem Township v. Weber, 58 Pa. Commonwealth Ct. 350, 427 A.2d 781

[ 116 Pa. Commw. Page 222]

(1981); Foltz, Jr. v. Monroeville, 5 Pa. Commonwealth Ct. 304, 290 A.2d 269 (1972). When the local agency has not issued a denial which could be the subject of an appeal, the rationale for proceeding with a mandamus action rather than using the ...


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