42 Pa. Commw. 589 | Pa. Commw. Ct. | 1979
Opinion by
This is an appeal from an order of the Court of Common Pleas of Bucks County which affirmed a decision of the Zoning Hearing Board (Board) of Doylestown Township denying appellant’s application for a variance to construct a dwelling on an undersized lot. The sole question raised in this appeal is whether the court correctly determined that a timely hearing was held pursuant to Section 908(9) of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(9). For the following reasons we conclude the court’s determination was correct and therefore affirm.
The appellant on December 3, 1975 submitted two applications regarding the lot in question to the township zoning officer, one a request for a building permit and the second an application for a “special ex
Section 908(9) of tbe Code as originally enacted provided that tbe failure of a zoning bearing board to render a decision within 45 days of tbe last bearing on tbe application would result in tbe action deemed approved in favor of tbe applicant. By amendment contained in Section 1 of tbe Act of December 10, 1974, P.L. 822, the 45-day rule was expanded to provide that where the Board fails to “bold tbe required bearing, within forty-five days from tbe date of tbe applicant’s request for a bearing tbe decision shall be deemed to have been rendered in favor of tbe applicant unless tbe applicant has agreed in writing to an extension of time.”
Tbe threshold, and we believe dispositive question in tbis case is whether tbe appellant bad within tbe meaning of Section 908(9) requested a bearing when
Accordingly, we will enter the following
Order
And Now, May 14, 1979, the order of the Court of Common Pleas of Bucks County, Civil Division, No. 76-4672, dated May 3, 1977, is hereby affirmed.
While it is not entirely clear from the record of the hearing that the Board viewed the second application as a request for a hearing, it is clear that the Board in fact treated the application as such. Further, the record indicates that appellant submitted only one filing fee for both “applications.” Finally, appellant admits that it never asserted to the Board that it viewed the December 3, 1975 application as a request for a hearing. Appellant’s argument on this point, that it wished to proceed to a hearing because a decision on the merits would be res judicata in a subsequent action, is without merit since res judicata would apply equally if Section 908(9) were to apply.