36 Pa. Commw. 161 | Pa. Commw. Ct. | 1978
Opinion by
The Township of Springfield and its officials (Township) appeal to this Court from a decision of the Court of Common Pleas of Delaware County ordering that a use variance and zoning permit be issued to A.Z.J.Z., Inc. (Appellee).
The Appellee requested a variance to construct a four by nine foot Fotomat kiosk on its property.
The question here is whether or not the “notice” sent to the Appellee satisfied the requirements of - a written “decision” as mandated by Section 908(9) of the MPC.
NOTICE
At the meeting of the Zoning Hearing Board on June 24, 1976, the request for permission to erect a Fotomat Kiosk was denied.
The written decision is in preparation and will shortly be filed in the Township Building,
50 Powell Road, Springfield, Pa.
WALTER P. STOUD Secretary
June 25/1976
This Court has held, therefore, that the 45-day requirement here concerned is satisfied when the parties are specifically notified of a decision within 45 days even though the decision is not then accompanied by findings of fact, an opinion or any explanation of the result. Heisterkamp v. Zoning Hearing Board, 34 Pa. Commonwealth Ct. 539, 383 A.2d 1311 (1978); Morgan v. Zoning Hearing Board, 3 Pa. Commonwealth Ct. 362, 283 A.2d 95 (1971). In Morgan, supra, a zoning board decision was upheld which had been sent out within 45 days of the hearing but which was unaccompanied by findings of fact or conclusions of law and which read as follows:
And Now, this 2nd day of June 1970, the application of Carl F. Morgan and Grail Morgan ... is hereby denied.
The lower court in the case at hand indicated that the Morgan case was distinguishable from the instant case because no “decision” had been filed here, and it indi
In the case before onr Court, the Board apparently made an informal decision and the same was circulated in the Notice of June 25, 1976. However, since no formal written Opinion had been issued in the case within the required forty-five (45) day period, we feel that the Humble Oil decision is controlling.
The facts here, however, are distinguishable from that in Humble Oil because the Board here did reach its decision and did specifically notify the parties of its decision within 45 days as required by Section 908 of the MPC, 53 P.S. §10908(9), and as Humble Oil, supra, indicated to be necessary.
The lower court’s reversal of the Board merely because the Board styled its decision as a “notice” or because it failed to include findings of fact and an opinion cannot be sustained.
We must, therefore, reverse.
Order
And Now, this 20th day of June, 1978, the order of the Court of Common Pleas of Delaware County at 76-10594 is hereby reversed.
The Appellee also applied for expansion of a nonconforming restaurant use which was granted.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(9).
This section provides as follows:
The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within forty-five days after the last hearing before the board or hearing officer. Except in home rule municipalities, where the application is contested or denied, each decision shan be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. . . . Where the board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within forty-five days from the date of the applicant’s request for a hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing to an extension of time. (Emphasis added.)
53 P.S. §10908(9).