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DAUPHIN PLAZA ASSOCIATES v. COMMONWEALTH PENNSYLVANIA (06/28/89)

decided: June 28, 1989.

DAUPHIN PLAZA ASSOCIATES, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT (TWO CASES)



PETITION FOR REVIEW, (DEPARTMENT OF TRANSPORTATION).

COUNSEL

Jeffrey B. Clay, McNees, Wallace & Nurick, Trent Hargrove, Harrisburg, for petitioner.

Michael H. Kline, Asst. Counsel, John L. Heaton, Chief Counsel, Harrisburg, for respondent.

Craig and Barry, JJ., and Narick, Senior Judge.

Author: Barry

[ 127 Pa. Commw. Page 134]

OPINION

Petitioner owns property in Dauphin County which is currently being developed as a shopping center. In connection with that development petitioner filed an application for a highway occupancy permit on May 4, 1988, requesting that it be allowed to access an adjoining highway with two signalized driveways. DOT, by letter to petitioner dated May 11, 1988, stated that DOT would require additional information and that DOT would not allow signalization at one of the proposed locations.

On May 20 petitioner filed with DOT a petition to intervene in a highway occupancy permit application filed by Lanecor Associates. Lanecor is developing another shopping center on the other side of the highway and requested access at the same points on the highway. On June 3

[ 127 Pa. Commw. Page 135]

    petitioner filed with DOT a request for hearing and motion to consolidate the proceedings concerning both applications. On June 9 petitioner filed with this Court the present petition for review of DOT's action regarding petitioner's permit application. The petition requested relief in the form of deemed approval of the permit or remand for an administrative hearing before DOT. DOT granted the petition to intervene and the separate request for a hearing on June 29. Two hearings were held by DOT, one on July 29 and another on August 2. Post hearing briefs were filed and a decision is still pending.

On July 28, before the DOT hearings, petitioner filed an application for summary relief with this Court regarding the deemed approval claim. This Court heard arguments on August 22 and denied the requested relief in an order from Judge Doyle dated August 23. On August 22 DOT also filed a motion to quash the petition for review. Petitioner filed a motion for an expedited hearing on August 26. This Court ordered on September 7 that the petition for review and the motion to quash be argued jointly.

On October 25 petitioner filed a petition for review addressed to this Court's original jurisdiction. Cross motions for summary relief were filed and were argued jointly with the appellate arguments.

While this case is procedurally complicated, there is only one substantive issue. Petitioner argues that its permit application has been deemed approved because DOT failed to properly respond to the application within 60 days as required under ยง 508(6) of the Municipalities Planning Code.*fn1 This section requires that within 60 days DOT either approve the application, deny it, return it for additional information, or determine that no permit is required. Petitioner argues that DOT's ...


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