Citation:

Barness Land Development Co. v. Board of Supervisors of Washington Twp.
852 A.2d 463 (Pa. Cmwlth. 2004).

Case Details:

In this case, an applicant for a conditional use asked the court to issue an order of mandamus to compel the governing board to grant its application to subdivide 200 acres.

The procedural history of this case is important. The governing board adopted an ordinance to rezone properties within their township, including the applicant’s property. Opposing residents commenced a validity challenge of the ordinance because they claimed the township did not give proper notice when the ordinance was adopted. The zoning hearing board agreed with the residents and invalidated the ordinance. The township published notice to readopt the ordinance. Just hours before the ordinance would become effective, the applicant filed his application to subdivide the property. The township rejected his application by citing to the invalidated and subsequently re-adopted ordinance.

Also, while this was happening, the township appealed the ZHB’s invalidation of the ordinance. The applicant intervened to oppose the township. The trial court affirmed the ZHB’s decision to invalidate the ordinance. The township appealed again. The case was still pending at the time of this court’s decision.

The applicant sought to compel the township to approve his application through an action in mandamus. The trial court granted mandamus because it concluded that because the township’s rejection rested on an invalidated ordinance, its decision was like resting on no ordinance at all and amounted to a “deemed approval” of the application. The trial court concluded that because there was a deemed approval, the applicant had a clear right to approval of the application. The appellate court disagreed.

Mandamus is only granted in the most extraordinary circumstances when the petitioning party has a “clear legal right” and no other appropriate legal remedy exists. The court stated that the petitioner lacked a “clear legal right” because the pending litigation on the validity of the first adoption of the ordinance had not been concluded. If a court eventually determined that the ordinance was valid, the ordinance would apply to the application and render the township’s denial of the application appropriate.

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