Bucks County Housing Development Corp. v. Zoning Hearing Bd. of Plumstead Tp.

• Decision Date: 07 September 1979
• Citation: 406 A.2d 832,45 Pa.Cmwlth. 532
• Parties: BUCKS COUNTY HOUSING DEVELOPMENT CORPORATION v. ZONING HEARING BOARD OF the TOWNSHIP OF PLUMSTEAD et al. (two cases). Appeal of TOWNSHIP OF PLUMSTEAD. Appeal of Frank J. EARNHART et al.
• Court: Pennsylvania Commonwealth Court

Page 832

406 A.2d 832 45 Pa.Cmwlth. 532 BUCKS COUNTY HOUSING DEVELOPMENT CORPORATION
v.
ZONING HEARING BOARD OF the TOWNSHIP OF PLUMSTEAD et al.
(two cases).
Appeal of TOWNSHIP OF PLUMSTEAD.
Appeal of Frank J. EARNHART et al. Commonwealth Court of Pennsylvania. Argued April 5, 1979.
Decided Sept. 7, 1979.

Page 834

[45 Pa.Cmwlth. 533] George M. Bush, Albert L. Blackman, Jr., Hartzel & Bush, Doylestown, for Plumstead Tp.

Thomas J. Profy, III, Bristol, for Bucks County Housing Development.

Stephen B. Harris, Warrington, for Zoning Hearing Bd.

Robert C. J. McKinstry, Gardenville, Frank J. Earnheart, Frederick J. Raring, Reva Mae Raring and Frank J. Earnheart, Doylestown, pro se.

[45 Pa.Cmwlth. 532] Before MENCER, ROGERS and CRAIG, JJ.

CRAIG, Judge.

The planned residential development (PRD) application of the Bucks County Housing Development Corporation (applicant) has resulted in an earlier appeal to this court, in Bucks County Housing Development Corp. v. Township of Plumstead, 25 Pa.Cmwlth. 354, 361 A.2d 447 (1976), where this court held that the PRD application was subject to a duly pending zoning ordinance amendment, which was later enacted.

[45 Pa.Cmwlth. 534] Thereafter the applicant pursued, before the Zoning Hearing Board (board) of the Township of Plumstead (township), a validity appeal attacking the constitutionality of the zoning ordinance amendment.

After holding hearings on eight dates between July 29, 1975 and March 11, 1976, the board on April 13, 1976 adopted a motion that the board "continue these hearings, pending the resolution between the township and applicant and the other intervening parties of the question of payment of stenographic expenses and the expense of the solicitor to the board."

The applicant, refusing to pay the expense of the board's solicitor, declared through counsel that applicant would invoke the 45-day rule of Pennsylvania Municipalities Planning Code (MPC) Section 908(9) ¹ if the board failed to proceed with hearings or a decision.

On July 13, 1976, 91 days later, applicant filed an action in mandamus to compel approval of its PRD application as a "deemed decision" under MPC § 908(9) because the board did not, in the interim, hold any more hearings or issue any decision. From the granting of the requested mandamus order by the Court of Common Pleas of Bucks County, the township and objectors, who were parties to the zoning appeal and named as defendants in the mandamus action, ² have brought this appeal.

We affirm the decision of the court below, noting each of the issues raised.

[45 Pa.Cmwlth. 535] An initial issue is whether mandamus is a proper remedy. Objectors...