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BOARD COMMISSIONERS TOWNSHIP LOWER MERION v. APPALOOSA DEVELOPMENT CORPORATION AND ALBERT F. W. VICK AND EDITH F. VICK (12/02/88)

decided: December 2, 1988.

BOARD OF COMMISSIONERS OF THE TOWNSHIP OF LOWER MERION, APPELLANT
v.
APPALOOSA DEVELOPMENT CORPORATION AND ALBERT F. W. VICK AND EDITH F. VICK, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Appaloosa Development Corporation and Albert F. W. Vick and Edith F. Vick, his wife v. Board of Commissioners of The Township of Lower Merion, No. 87-12472.

COUNSEL

Gilbert P. High, Jr., High, Swartz, Roberts & Seidel, for appellant.

Thomas J. Burke, Sr., Haws & Burke, for appellees.

Judges Colins and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge MacPhail did not participate in the decision in this case.

Author: Kalish

[ 121 Pa. Commw. Page 414]

Appellant, the Board of Commissioners of the Township of Lower Merion, (Board), appeals from an order of the Common Pleas Court of Montgomery County, which granted a motion for judgment on the pleadings in favor of Appaloosa Development Corporation, Albert Vick, and Edith Vick (appellees).

Appellees own a tract of land in Lower Merion Township, Montgomery County (Township). In November, 1985, appellees submitted to the Township for approval, a plan of Planned Residential Development (P.R.D.). The plan was reviewed by the Township Land Development Committee at its meeting on December 6, 1985, and subsequent revisions were made. On November 14, 1986, appellees filed an application with the Board, seeking tentative approval of their plan pursuant

[ 121 Pa. Commw. Page 415]

    to Article VII of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10701-10711. The Board held public hearings concerning the application, concluding on May 27, 1987.

On July 15, 1987, less than sixty days following the last hearing date, the Board voted to deny appellees' plan. Nothing in writing was signed by any member of the Board, nor was anything in writing sent to appellees. The vote to deny was based on a draft memorandum presented to the Board by the Board solicitor.

On July 28, 1987, sixty-two days from the Board's final public hearing, a decision was issued denying appellees' application. The decision was signed by the Board president and was filed in the Board's office. On the same day a copy was given to appellees' representative. On July 30, 1987, sixty-four days after the last public hearing, certified copies of the memorandum were delivered to appellees' counsel.

On August 25, 1987, appellees filed this action in mandamus, seeking tentative approval of their P.R.D. on the grounds that the Board failed to act within the sixty day limit specified in sections 709 and 710 of the MPC, 53 P.S. §§ 10709 and 10710. Following the Board's answer, appellees motioned for judgment on the pleadings.

The trial court granted appellees' motion, concluding that sections 709 and 710 of the MPC require that, within sixty days of the last meeting of the governing body on a P.R.D. application, such body shall "by official written communication" to the landowner grant approval. Because of the ...


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