Appeal from the Order of the Commonwealth Court dated January 5, 1987 entered at Docket No. 2683 C.D. 1985 reversing the Order of the Court of Common Pleas of Butler County dated August 30, 1985 at Docket No. 84-058, Civil Division.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. McDermott, J., dissents.
In this appeal we are asked to address a very limited issue, whether the requirements set forth in § 10508 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 508, as amended, 53 P.S. § 10508 are mandatory. The facts are not in dispute.
The Appellee is the owner of a parcel of land which was part of a previously recorded subdivision plan. Because he wished to join together three of his lots into one, thereby dividing his undeveloped land into two lots, the Appellee was required to submit an application for subdivision plan approval to Butler Township, which in accordance with the Municipalities Planning Code and the Township ordinances, referred the matter to the Butler Township Planning Commission.
At the conclusion of the Planning Commission Hearing, Appellee was advised that the Commission would recommend approval to the Township subject to certain street paving requirements and the addition of five fire hydrants to the plan. The matter was then referred to the Township Commissioners for final approval. At the Commissioner's meeting, the Appellee, through his attorney, was advised that the submitted plan could not be approved until the Appellee agreed to build certain roadways to Township specifications. Because more information was requested, the matter was tabled to permit the Appellee additional time to comply with the Commissioners' request. After all of the requested information had been furnished, the plan was brought to a final vote and rejected. The written notice of the Commissioner's decision was as follows:
At their regular meeting on May 21, 1984, the Butler Township Board of Commissioners disapproved your request
for a subdivision at the end of Campbell Avenue in Highfield, Butler, Pennsylvania.
Your proposed plan does not meet the Township's specifications as they apply to roads and utilities. If the Commissioners were to approve the subdivision you have submitted, the Township would run the risk of installing these improvements.
It is the Commissioners' decision that the Township's Ordinances must be uniformly applied to all persons and to make exceptions would not be in the best interest of Butler Township. Please contact me should you have any additional questions.
Dissatisfied with the decision, the Appellee filed a notice of appeal to the Court of Common Pleas and requested a hearing de novo. Immediately prior to the scheduled hearing, the Appellee's attorney raised the issue of "deemed approval" under § 10508(3) for failure to comply with the requirements of § 10508(2). Appellant objected to the late submission of the "deemed approval" issue. Notwithstanding, the trial court permitted testimony on that issue.
After taking testimony, the trial court upheld the rejection of the subdivision application relying upon Appeal of Johnston, 69 Pa. Commw. 220, 450 A.2d 785 (1982). A timely appeal was then filed with Commonwealth Court which reversed holding that the requirements of § 10508(2) were mandatory. 103 Pa. Commw. 28, 519 A.2d 571. We granted Appellant's Petition for Allowance of Appeal to review the application of §§ ...