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POCONO SALES CORP. v. BEAR CREEK TOWNSHIP ET AL. (09/20/88)

decided: September 20, 1988.

POCONO SALES CORP., APPELLANT
v.
BEAR CREEK TOWNSHIP ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County, in the case of Pocono Sales Corp. v. Bear Creek Township, Zoning Hearing Board of Bear Creek Township and Ray Wasilewski, Zoning Officer, No. 1006-C of 1982.

COUNSEL

Ronald M. Lucas, Tive, Hetrick & Pierce, P.C. for appellant.

Glenn G. Yanik, with him, Peter J. Hoegen, Jr., Hoegen, & Marsh, for appellee.

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

Author: Craig

[ 119 Pa. Commw. Page 596]

Pocono Sales Corporation appeals a decision of the Court of Common Pleas of Luzerne County, dismissing Pocono's complaint in mandamus, and refusing to find that Pocono's application to the Zoning Hearing Board of Bear Creek Township must be deemed to be approved.

This appeal presents two issues. The first issue is whether Pocono amended its application to eliminate an area of the proposed development contained in an S-1 district. The second issue is whether the board, by simply preparing a decision that was dated forty-four days after the hearing, but was not delivered to the applicant until ninety-seven days after the hearing had "rendered a written decision" within forty-five days as required by section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10908(9).

Because we conclude that Pocono did amend its application to withdraw the application regarding the S-1 portion of the land, we affirm the trial court on that issue. However, because we conclude that the board failed to render a written decision within forty-five days regarding the portion of the property in the A-1 district, Pocono's application must be deemed to be approved, and we reverse on that point.

The facts are not in dispute. On September 1, 1981, Pocono filed an application with the Bear Creek Township Zoning Hearing Board, requesting approval of the board to build a private camping area on a 538 acre tract of land. Part of the land, 168 acres, is located in a district zoned A-1, with the remainder of the 538 acres located in an S-1 district.

Before proceeding to the zoning hearing board, Pocono appeared before the Bear Creek Township Planning Commission, on September 30, 1981. At that time the planning commission, although having no power to

[ 119 Pa. Commw. Page 597]

    do so, voted to deny Pocono's application regarding the S-1 portion of the land, because, under the township zoning ordinance, a commercial recreational facility is not a permitted use or one permitted by special exception in the S-1 district.

On October 28, 1981, Pocono appeared before the zoning hearing board for the consideration of its application. The board members indicated to Pocono that they were going to consider its application only for the A-1 portion of the land. During the hearing, Pocono limited its presentation to its application for a special exception for acres contained in the A-1 section.

On November 25, 1981, the board voted to deny Pocono's application relating to the A-1 portion of the land. On January 29, 1982, Pocono's counsel contacted the board's solicitor to inquire about the status of Pocono's application. On February 2, 1982, the board's solicitor mailed a copy of a decision dated December 11, 1981, reflecting the board's November 25, 1981 denial of Pocono's application for a special exception in the A-1 portion of land.

Pocono filed a complaint in mandamus asserting that its entire original application must be deemed to be approved under section 908(9) of the MPC. Specifically, Pocono asserted, as it does now, that the application for the S-1 portion is deemed to be approved because the board failed to conduct a hearing on that matter within sixty days. With respect to the A-1 portion of the land, Pocono contends that the board failed to render a written decision within forty-five days.

The trial court concluded that, because Pocono had withdrawn its application regarding the S-1 portion, it was not entitled to a deemed approval. The trial court also concluded that because the decision was dated December 11, 1981, forty-four days after the hearing, the board had rendered a written decision within forty-five days.

[ 119 Pa. Commw. Page 598]

Where, as here, the trial court has taken additional evidence, our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law. Immordino v. Zoning Hearing Board of ...


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