32 Pa. Commw. 631 | Pa. Commw. Ct. | 1977
Opinion by
Bert R. Wiggs and Elsie M. Wiggs, his wife,- landowners, appeal from an order of the Court of Common Pleas of Northampton County sustaining a preliminary objection in the nature of a demurrer to, and dismissing, their petition for review in mandamus. The appellants sought an- order of court requiring the respondent Supervisors of Hanover Township -to affix their signatures to á subdivision plat of the appellants ’ land as evidence that their subdivision had township' approval. The appellants’ case is founded on Section 508 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31,1968, P.L. 805, as amended, 53 P.S. §10508, which in pertinent part provides:
All' applications for approval of a plat . . . shall be acted upon by the governing body . . . within such time limits as may be fixed in the .'. . ordinance but the governing body . . . shall*633 render its decision and communicate it to the applicant not later than ninety days after such application is filed.
(3) Failure of the governing body or agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented unless the applicant has agreed in writing to an extension of time ... in which case, failure to meet the extended time ... shall have like effect.
Mr. and Mrs. Wiggs say that the township failed to render a decision on their plat within ninety days and that this failure must be deemed approval.
Preliminary objections to a petition for review in the nature of a demurrer admit every well pleaded material fact. International Union of Operating Engineers v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974). We must therefore examine the petition for review. The relevant averments of that pleading are: that the appellants submitted a plat plan sketch of their proposed subdivision for township approval on April 5, 1976; that their plat was “labeled a preapplication sketch plan” by the township authorities; that their plan was in full compliance with all township zoning requirements; that in compliance with comments of township authorities at township meetings, the appellants made adjustments and additions to the plat originally submitted (1) by rotating lot boundaries so that four of the 12 lots proposed would front on a proposed new road rather than an existing public road, (2) by providing a typical street cross-section, and (3) by signing, and procuring the signature of their engineer to, the plat; that the plat, as so adjusted, was delivered to the township on June 18,1976; that on or about June 23, 1976, the ap
The township’s subdivision regulations are not referred to in the petition for review and are not in this record. The petitioners do not aver that the subdivision plat filed April 5, 1976, or that plat as subsequently revised, complied with the township’s subdivision regulations, as distinguished from zoning requirements; nor do they reveal whether the adjustments to the plan made by the plat delivered to the township on June 18, 1976 or the additional submissions made on'or about June 23, 1976 were things required to be done in order to bring the filing into conformity with the township’s subdivision regulations applicable to preliminary plans of subdivision.
The court below sustained the demurrer and dismissed the petition for review on the authority of DePaul Realty Co. v. Borough of Quakertown, 15 Pa. Commonwealth Ct. 16, 324 A.2d 832 (1974). In DePaul the landowner filed an application for subdivision approval which it knew deviated from a requirement of the municipality’s zoning ordinance. Of course, subdivisions which did not comply with zoning regulations could not, under subdivision regulations, be ap
While the appellants under the facts stated cannot, in our opinion, prevail, their petition for review does not exclude the possibility of recovery under a differ
We will reinstate the petition for review, and affirm the order of the court below sustaining the respondents’ preliminary objection in the nature of a demurrer modified to provide leave to the petitioners to amend the reinstated petition within twenty days after notice of our Order.
Order
And Now, this 12th day of December, 1977, it is ordered that the appellants’ petition .for review be reinstated; we affirm the order of the court below sustaining respondents’ preliminary objection in the
The docket reveals this date as July 7,1976.