Pennsylvania Land Use Law Library

  
  

 

  

KEY TOPIC: APPELLATE PROCEDURE

Board of Supervisors of East Rockhill Twp. v. Mager
855 A.2d 917 (Pa. Cmwlth 2004).

When a governing board fails to commence a hearing on an application within the time requirements under the MPC, a decision will be deemed to have been rendered in favor of the applicant and the board will lack standing to appeal.

In this case, the applicant requested a conditional use. The board failed to commence a hearing in the time period mandated by the section 913 of the MPC. The applicant then published a notice in the newspaper that conditional use was deemed approved for any party opposing the conditional use application to appeal within thirty days. The governing board filed an appeal. The court dismissed the case because it held that the governing board lacked standing to appeal.

The governing board argued that it was within the class of persons opposed to granting the application and had the right to appeal. The Court disagreed, holding that because the actions of the governing board rendered a deemed approval of the application, the governing board could not be a party opposing it.

The governing board also argued that the trial court should have remanded the case for a decision on the merits of the application because there were no facts on the record to determine if the application met the requirements for a conditional use. In support, the governing board cited Section 1005-A of the MPC for authority to the trial court to either conduct an evidentiary hearing or remand to a referee to gather more evidence. However, because of the permissive language in the section, the court determined that it was within the trial court's discretion to decide whether or not to remand.

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