25 Pa. Commw. 318 | Pa. Commw. Ct. | 1976
Opinion by
The appellant, Carl R. Enck, applied to the Zoning Hearing Board of Lititz Borough for approval of the change from one nonconforming use to another of a building owned by him and located in the Borough. The Zoning Hearing Board conducted two hearings on Enck’s application. When the taking of evidence had been completed at the second hearing, the Board recessed for ten minutes for private deliberation. It then returned to the meeting room and the Chairman of the Board announced that the Board had concluded that Enck’s application should be denied. The Board
Enck filed a timely appeal from the Board’s decision in the Court of Common Pleas of Lancaster County, pursuant to Sections 1007 and 1008 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§11007, 11008. This matter is apparently still pending.
More than forty-five days after the Zoning Hearing Board rendered its decision, Enck applied to the Borough Zoning Officer for a building and occupancy permit to use his property as he had proposed in his application to the Zoning Hearing Board. When this application was refused, Enck filed a complaint in mandamus seeking the court’s order that the Zoning Officer issue the building and occupancy permit. His theory in the mandamus suit is that the action of the Zoning Hearing Board in going into recess was a violation of the Act of July 19, 1974, P.L. 486, 65 P.S. §261 et seq. (popularly known as the Sunshine Law
The only authority cited by Enck for the proposition that he was entitled to relief in mandamus, although he had available and had filed a zoning appeal is that of Foltz v. Monroeville, 5 Pa. Commonwealth Ct. 304, 290 A.2d 269 (1972). In Foltz, the Zoning Plearing Board failed to render any decision within forty-five days. After forty-five days had elapsed from its last hearing, the Board adopted a resolution denying the landowner’s application. The landowner filed a zoning appeal. It also filed suit in mandamus, invoking the “deemed approval” provision of Section 908(9) of the MPC, 53 P.S. §10908 (9). We held, following Humble Oil v. East Lansdowne Borough, 424 Pa. 309, 227 A.2d 664 (1967), that Section 908(9) created a conclusive presumption of approval by a Board which failed to act within the time prescribed and that mandamus was therefore available as a remedy to the landowners. The facts of the instant case are crucially different. The Lititz Borough Zoning Hearing Board made a timely decision, as Enck’s complaint in mandamus, although describing the decision as “purported,” reveals. The Sunshine Law declares that “no formal action shall be valid unless such formal action is taken during a
The lower court ably analyzed the merits of Enck’s thesis and concluded that hearings and deliberations of Zoning Hearing Boards are within the Sunshine Law’s exclusion
Order affirmed.
The Sunshine Law became effective after tbe Board’s first bearing and about three weeks before tbe second.
At Section 2, 53 P.S. §262.
At Section 1, 53 P.S. §261.