358 A.2d 143
Commonwealth Court of Pennsylvania.Argued April 7, 1976
May 24, 1976.
Zoning — Land development plan — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805 — Vested rights — Appeal — Decision of governing body.
Page 586
1. Under the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, a land development plan properly filed may not be disapproved on the basis of its nonconformance with zoning requirements enacted after the plan was filed. [587-8-9]
2. An appeal lies under the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, from decisions of governing bodies adverse to land development plans properly submitted to such bodies, but no appeal may be taken when the plan was merely denied by a building inspector at the request of the applicant and never considered by the governing body. [587-8-9]
Judge KRAMER did not participate in this decision.
Argued April 7, 1976, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 1434 C.D. 1975, from the Order of the Court of Common Pleas of Montgomery County in case of Valley Forge Plaza Associates v. Board of Supervisors of Upper Merion Township, No. 74-12467.
Land development plan submitted to officials of Upper Merion Township. Plan disapproved. Applicant appealed to the Court of Common Pleas of Montgomery County. Appeal dismissed. LOWE, J. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Clarke F. Hess, with him Butera Detwiler, for appellants.
Gregory J. Dean, with him James E. Meneses, for appellee.
OPINION BY JUDGE ROGERS, May 24, 1976:
Valley Forge Plaza Associates, a land developer, has appealed from an order of the Court of Common Pleas of Montgomery County dismissing its appeal from what the appellant asserts was a decision of the Board of Supervisors of Upper Merion Township to reject a land development plan. The appellant says that its plan was
Page 587
rejected by the Supervisors because of its nonconformity with a zoning regulation enacted after the plan was filed, contrary to the provision of Section 508 (4) of The Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805 as amended, 53 P. S. § 10508 (4). See Monumental Properties, Inc. v. Township of Whitehall, 11 Pa. Commw. 105, 311 A.2d 725 (1973).
The appellant desired to develop land by the construction of a building more than 85 feet in height in Upper Merion’s AR-1 zoning district. On July 8, 1974, the Upper Merion Board of Supervisors announced its intention to amend its zoning ordinance by restricting the height of structures in certain districts, including the AR-1 district, to a maximum of 85 feet. On July 25, 1974 and August 1, 1974, notices that the Board would consider the proposed amendment at a public meeting on August 12, 1974 were duly published in a local newspaper.
On July 30, 1974, an architect employed by the appellant spoke by telephone with a township building inspector concerning the effect, if any, the proposed amendment would have on his client’s development plan, allegedly prepared on July 24, 1974. The building inspector, after consulting with the township solicitor, returned the architect’s call and informed the latter that the proposed amendment, if enacted, would have no effect on those projects for which land development plans had already been filed with the township but that he would not accept nonconforming plans because of the pendancy of the zoning amendment. On August 12, 1972, as scheduled, the Board of Supervisors considered and adopted the amendment providing a maximum height limitation of 85 feet in the AR-1 district.
On August 19, 1974, Mr. Shaeffer appeared at the Upper Merion Township Building with preliminary land development plans. He neither filed nor submitted the plans for review by the township authorities but requested only that the building inspector with whom he
Page 588
had talked on July 30, 1974 stamp a copy of the plans “denied” and to record date of the denial as July 30, 1974. The admitted purpose of this request was to “get the boss off my back” and to mollify investors in the appellant’s project. The building inspector accommodated the appellant’s architect with regard to marking a copy of the plans and additionally provided a letter stating that the architect had been told on July 30, 1974 that plans could not be accepted on the advice of the township solicitor.
On August 27, 1974, the appellant filed a Notice of Appeal from “the decision of the Board of Supervisors of Upper Merion Township . . . dated July 30, 1974, denying approval of a preliminary revised Development Plan.” The township filed a Petition to Dismiss, the prayer of which the Court of Common Pleas of Montgomery County, after depositions were taken and entered, granted. The lower court based its action on Section 1006. of the Pennsylvania Municipalities Planning Code, 53 P. S. § 11006, which authorizes appeals from decisions of the governing bodies adverse to land development plans submitted in accordance with municipality procedures. The lower court noted that Upper Merion’s Land Development regulations required the submission of preliminary plans in duplicate with an application for approval by the Board of Supervisors, and properly found from the evidence that the appellant’s plans had not been submitted to the Supervisors for approval in accordance with the regulations and that the Supervisors had made no decision from which an appeal could be taken. We agree.
The appellant’s assertion that it filed plans with the township on or as of July 30, 1974, a date prior to the enactment of the amendatory ordinance, is pure fiction. The phrase “duly filed” employed in Section 508(4), 53 P. S. § 10508
at the very least imports an actual filing. Not only was nothing filed on July 30, 1974, we have only the appellant’s representations that its plans were even in existence on that date.
Page 589
We are convinced, as was the lower court, that the appellant’s architect sought to contrive a filing on a date prior to the date on which the disqualifying zoning changes were made, that his and the building inspector’s actions on August 19, 1974 were intended, not as a submission of plans for the Board’s consideration and approval, but as the creation of the fiction of an earlier disapproval of unsubmitted plans, and that the Board of Supervisors made no decision from which an appeal would lie. If plans indeed existed on July 30, 1974, they and an application for approval should have been submitted on that date and, if refused for filing, mandamus brought to require their acceptance for filing and consideration by the Board of Supervisors.
Order affirmed.
Judge KRAMER did not participate in the decision in this case.