Philomeno & Salamone v. Board of Supervisors

966 A.2d 1109, 600 Pa. 407, 2009 Pa. LEXIS 385
CourtSupreme Court of Pennsylvania
DecidedMarch 18, 2009
Docket105 MAP 2006
StatusPublished
Cited by10 cases

This text of 966 A.2d 1109 (Philomeno & Salamone v. Board of Supervisors) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Philomeno & Salamone v. Board of Supervisors, 966 A.2d 1109, 600 Pa. 407, 2009 Pa. LEXIS 385 (Pa. 2009).

Opinions

OPINION

Justice EAKIN.

On June 5, 2003, appellant, equitable owner of 18.67 acres in Upper Merion Township, Montgomery County, submitted an application to the township’s Board of Supervisors to subdivide the property into two parcels, and to further subdivide one of those parcels into 17 residential lots. The Board twice requested extensions of time to make a decision; § 508 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508, provides a municipality must take action on an application within 90 days of the next meeting of its governing body or planning agency, or such application will be “deemed an approval.”1 Appellant agreed to both extensions; the new deadline for this plan was December 24, 2003.

Prior to that date, appellant filed a distinct conditional use application for the property. This plan reflected suggestions from the Township Planning Commission, and would have allowed development of 28 townhouse units on a 4.89-acre parcel, with a 8.65-acre open space parcel and a 4.38-acre recreational use parcel. On June 23, 2004, the Board denied this conditional use application, a decision the trial court and Commonwealth Court affirmed on appeal.

Six days after denial of the conditional use application, appellant filed an action for mandamus and peremptory judgment, asserting the initial subdivision application should be deemed approved under § 508 because the Board did not act upon it by the December 24 deadline. Mandamus is the appropriate mechanism to obtain recognition of a deemed approval of a proposed land development plan, see Lehigh Asphalt Paving and Construction Company v. East Penn [410]*410Township, 830 A.2d 1063, 1070 (Pa.Cmwlth.2003), and a peremptory judgment may be entered where no genuine issue of material fact exists and the case is free and clear from doubt. See id.; Pa.R.C.P. 1098. The trial court, finding no genuine issue of material fact existed, granted appellant peremptory judgment.

The court determined the conditional use application did not supersede the subdivision application, which was therefore deemed approved under § 508. The court distinguished the two applications, explaining a conditional use “addresses the use of the land, while a subdivision plan addresses how the land is to be developed. A conditional use application seeks approval for new and potential uses for the land that, if granted, would then require a later submitted subdivision plan to be filed.” Trial Court Opinion, 3/18/05, at 5; see also 2 Robert M. Anderson, Law of Zoning in Pennsylvania § 22.20 (1982) (“While the governing body of a municipality has broad discretion in adopting standards for the approval of subdivision and land development plans, it cannot include provisions relating to the use of land. Regulation of use is a matter appropriate for control through a zoning ordinance.”).

Because of this distinction, the trial court found inapplicable cases holding that a revised subdivision application causes the time for decision to run from the filing of the revised plan. See Wiggs v. Northampton County Hanover Township Board of Supervisors, 65 Pa.Cmwlth. 112, 441 A.2d 1361, 1363 (1982); DePaul Realty Company v. Borough of Quakertown, 15 Pa.Cmwlth. 16, 324 A.2d 832, 835 (1974). The court distinguished cases holding § 508 is inoperative where an applicant creates confusion by submitting two inconsistent plans for the same tract. See Morris v. Northampton County Hanover Township Board of Supervisors, 39 Pa.Cmwlth. 466, 395 A.2d 697, 699 (1978). The court also noted Appeal of David Fiori, Realtor, Inc., 55 Pa.Cmwlth. 59, 422 A.2d 1207, 1208 (1980), held two subdivision plans could run simultaneously, and an untimely rejection of the first plan resulted in its being deemed approved. The court expressly noted it did not rely on Fiori, as that case involved two subdivision plans, but [411]*411found its logic supports the conclusion the law did not preclude simultaneous consideration of a subdivision plan and conditional use application.

The Commonwealth Court reversed, holding that by filing the conditional use application, appellant abandoned the subdivision plan application. See Philomeno & Salamone v. Board of Supervisors of Upper Merion Township, 882 A.2d 1044, 1048 (Pa.Cmwlth.2005). Although the court acknowledged the difference between the two types of applications and found each application was made pursuant to separate ordinances, it determined the Board was not required to rule on each application. Emphasizing that the purpose of the mandatory time period under § 508 is to protect an applicant from dilatory conduct of the Board, see Shelbourne Square Associates, L.P. v. Board of Supervisors of Township of Exeter, Berks County, 794 A.2d 946, 950 (Pa.Cmwlth.2002), the court found the Board’s failure to rule on appellant’s subdivision application did not result from such conduct, but rather from the “confusion and protracted proceedings” caused by appellant filing a separate and inconsistent conditional use application. See Philomeno, at 1048-49.

We granted allowance of appeal to determine whether filing a subsequent conditional use application effectively withdraws a pending inconsistent subdivision application for the same tract of land, or whether § 508 of the MPC “deems approved” all applications not acted upon in a timely manner. See Philomeno & Salamone v. Board of Supervisors of Upper Merion Township, 588 Pa. 790, 906 A.2d 1197 (2006) (Table). As the rule is codified at 53 P.S. § 10508, this is a question of statutory interpretation, and as such, is a pure question of law. See e.g., Commonwealth v. Bortz, 589 Pa. 431, 909 A.2d 1221, 1223 (2006). Questions of law are subject to de novo review, and our scope of review is plenary. Craley v. State Farm Fire and Casualty Company, 586 Pa. 484, 895 A.2d 530, 539 n. 14 (2006). Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 555 A.2d 72, 74 (1989), held § 508’s requirements are mandatory, and Kassouf v. Township of Scott, 584 Pa. 219, 883 A.2d 463, 471 (2005), upheld Coretsky’s [412]*412finding § 508 is mandatory because the statutory language clearly sets forth the time frame for decisions on land use applications.

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Philomeno & Salamone v. Board of Supervisors
966 A.2d 1109 (Supreme Court of Pennsylvania, 2009)

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Bluebook (online)
966 A.2d 1109, 600 Pa. 407, 2009 Pa. LEXIS 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philomeno-salamone-v-board-of-supervisors-pa-2009.