Loading...
HomeMy WebLinkAbout2003-1816 Equity RLP PROPERTIES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY 03-1816 EQUITY TOWNSHIP OF MONROE, CUMBERLAND COUNTY, PENNSYLVANIA, Defendant vs. GEORGE AZIZKHAN and HELGA: AZIZKHAN, Intervenors IN RE: CROSS-MOTIONS OF THE PLAINTIFF AND DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, 1.1. OPINION AND ORDER This is a declaratory judgment action in which the plaintiff seeks a finding that its application for a conditional use be deemed approved by the Township Board of Supervisors. The plaintiff and defendant have filed cross-motions for summary judgment. The intervenors, George and Helga Azizkhan have filed a brief in support of the motion for summary judgment filed by the Township. The plaintiff, RLP Properties LLC, owns nearly 100 acres of real estate in Monroe Township. The real estate is located in the Township's Agricultural Zone. The plaintiff filed an application for a conditional use approval of a "cluster" development. "Cluster" developments are permitted in a township's agricultural zone subject to receiving conditional use approval from the Township Board of Supervisors. Following hearings in December of2002 and February of2003, the Township, at a meeting on March 13, 2003, conducted deliberation and 2003-1816 EQUITY announced that it would not approve the plaintiff s application for conditional use. A written decision was rendered on April 4, 2003. The plaintiff contends that its application for conditional use ought to be deemed approved because the Township failed to render a written decision within forty-five days of its last hearing on the matter. The last hearing, prior to the March meeting, was held on February 12,2003, more than forty-five days from April 4th. The Municipalities' Planning Code (MPC) provides in pertinent part that the "governing body shall render a written decision. .. within forty-five days after the last hearing before the governing body" and if "the governing body fails to render the decision within the period required by this subsection ... the decision shall be deemed to have been rendered in favor of the applicant..." 53 Pa.C.S.A. 10913.2(b)(I),(2). At the end of the hearing conducted on February 12, 2003, the Board established a schedule for the submission of written memoranda to advance the parties' closing arguments. Memoranda in the case were to be submitted on or before February 28,2003. The Board then continued the hearing regarding the plaintiff s application to the same night as its regularly scheduled Board of Supervisors meeting, same being March 13, 2003. In its brief filed in this matter, the plaintiff engages in a thoughtful, if not exhaustive, discussion of the difference between a "hearing" and a "meeting." We will not attempt here to do justice to the plaintiff s exposition. Weare satisfied, the plaintiff s argument to the contrary notwithstanding, that it is possible to have the hearing of a matter at a meeting. It is true that no further testimony was taken at the meeting on March 13th. The purpose of the March meeting was to consider the application for conditional use in light of the issues as framed by the township solicitor and the parties in their memoranda. The Pennsylvania MPC defines a "hearing" as "an administrative proceeding conducted by a Board pursuant to Section 2 2003-1816 EQUITY [53 P.S. 10909.1]." Id. at Section 10107. It has been held, specifically, that the term "hearing" is not limited to proceedings where substantive evidence is received but also includes specifically scheduled sessions for argument by counsel. See Gaster v. Township of Nether Providence, 556 A.2d 947,949 (Pa.Cmwlth. 1989) and Hogan, Lapore and Hogan v. Pequea Township Zoning Board, 638 A.2d 464 (Pa.Cmwlth. 1994). We agree with the defendant that, by analogy, a hearing would also include a specially scheduled session to be held during which the Board would have the opportunity to review written memoranda setting forth the parties' arguments and closing statements. Assuming, arguendo, that there was no "hearing" during the March 13th meeting, then we agree with the position advanced by the intervenors that the 45-day time period began to run from February 28, 2003, at the earliest. This was the date on which the memoranda of the parties were due and, even under a strict interpretation, would have been the date on which the parties advanced arguments in support of their position. These written filings were clearly the functional equivalent of oral argument and were part of the "hearing" of the matter as defined by the cases cited above. Finally, we emphasize that the purpose of the deemed decision provisions of the MPC is to punish a Board's procrastination. See Strauss v. Haverford Township, 608 A.2d 1105 (Pa. Cmwlth 1992). It is clear from the record of this matter that the plaintiff s application was dealt with with efficiency if not dispatch. The declaration of a deemed decision is simply inappropriate where the actions of the Board of Supervisors were in conformity with the intent of the Municipalities' Planning Code. 3 2003-1816 EQUITY ORDER AND NOW, this day of December, 2004, following argument thereon, the motion of the Township of Monroe for summary judgment is GRANTED. The motion of the plaintiff, RLP Properties LLC, for summary judgment is DENIED. BY THE COURT, Kevin A. Hess, 1. Spero T. Lappas, Esquire F or the Plaintiff James D. Bogar, Esquire Jennifer B. Hipp, Esquire For Monroe Township Hubert X. Gilroy, Esquire F or Intervenors 4 RLP PROPERTIES, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY 03-1816 EQUITY TOWNSHIP OF MONROE, CUMBERLAND COUNTY, PENNSYLVANIA, Defendant vs. GEORGE AZIZKHAN and HELGA: AZIZKHAN, Intervenors IN RE: CROSS-MOTIONS OF THE PLAINTIFF AND DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, 1.1. ORDER AND NOW, this day of December, 2004, following argument thereon, the motion of the Township of Monroe for summary judgment is GRANTED. The motion of the plaintiff, RLP Properties LLC, for summary judgment is DENIED. BY THE COURT, Kevin A. Hess, 1. Spero T. Lappas, Esquire F or the Plaintiff James D. Bogar, Esquire Jennifer B. Hipp, Esquire For Monroe Township Hubert X. Gilroy, Esquire F or Intervenors :rlm