8 Pa. Commw. 429 | Pa. Commw. Ct. | 1973
Opinion by
This case comes before us engulfed in somewhat of a procedural morass. John E. Russell (Russell) is the owner of a 122 acres tract of land located in Penn Township (Township). Russell decided that he wished
Although §1202-1 of the Zoning Ordinance specifically requires the Planning Commission to hold a hearing on any application for the approval of a conditional use, the Planning Commission held no hearing but merely rejected Russell’s application because his plans “did not comply with the Land Sub-Division Laws and Zoning Ordinances of Penn Township.” Instead of presenting his application to the Township Supervisors, as provided in the Zoning Ordinance, or bringing an action in mandamus to force the Planning Commission to abide by that Ordinance and hold a hearing, Russell filed an appeal with the Court of Common Pleas of Butler County from the Planning Commission’s refusal to grant a conditional use. That court issued an order on August 4, 1970 requiring the Planning Commission to hold a hearing on Russell’s application within 45 days and to render a final decision, including findings of fact and conclusions of law, within 30 days after the hearing. The court further provided that any party aggrieved by the final decision of the Planning Commission could appeal directly to that court.
On September 4, 1970, the Planning Commission held the required hearing and on November 4, 1970, 61 days later, the Planning Commission rejected Russell’s application in a letter addressed to the lower court. Formal findings of fact were not filed until January
At the time in question,
The lower court also erred by accepting this “appeal” in the first instance, or at least by doing anything other than ordering the Planning Commission to hold a hearing on Russell’s application. Section 603 of the MPC, 53 P.S. §10603, provides that conditional uses may “be allowed or denied by the governing body after recommendations by the planning agency, pursuant to express standards and criteria set forth in the ordinances. . . .” (Emphasis added.) Unlike the situation in Monessen v. Belmar Land Development Co., Inc. and National Development Corporation, 2 Pa. Commonwealth Ct. 484, 279 A. 2d 365 (1971), this Zoning Ordinance clearly complied with the provisions of Section 603. The Planning Commission is required to hold a hearing on an application for a conditional use and thereafter to make recommendations to the
To avoid requiring Russell to reapply for his conditional use, we will treat the findings made by the Planning Commission, in response to the court’s order of August 4, 1970, as the findings and determination required by the Zoning Ordinance and direct that the matter now be submitted to the Township Supervisors for their determination. If their action is adverse to Russell, he may, of course, seek further relief as provided by the MPC. In addition, he is not precluded from raising his challenges to the validity of the Zoning Ordinance by initiating any other type of proceeding which may be authorized by the MPC.
We reverse the order of the court below and remand the record to that court for further proceedings consistent with this opinion.
Section 908 has been amended by the Act of June 1, 1972, P. L. , No. 93, §908. This amendment, even if applicable to this case, made no change which would affect our decision on this issue.