IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of California :

:

v. : No. 622 C.D. 2015

: Argued: April 12, 2016

Zoning Hearing Board of : California Borough and : Jeffrey Maund and Eric Pagac :

: Appeal of: Jeffrey Maund and : Eric Pagac :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: June 1 4 , 2016

Appellants Jeffrey Maund and Eric Pagac (the landowners) appeal

from an order of the Court of Common Pleas of Washington County (trial court)

,

sustaining a land use appeal filed by the Borough of California ( Borough)

.

Through the land use appeal, the Boro ugh challenge s the landowners ’ claim that a

deemed approval of a purported variance application had occurred

. In Maund v.

Zoning Hearing Board of California Borough (Pa. Cmwlth. , No. 206 C.D. 2015,

filed June 8, 2016) ( Maund )

, a companion case to this mat ter, we affirmed an order

of the trial court sustaining preliminary objections to a complaint in mandamus

filed by the same landowners (Jeffrey Maund and Eric Pagac) against the Zoning

Hearing Board of the Borough of California (ZHB) . In the mandamus comp laint,

the landowners sought relief based on the same claimed deemed approval of a2

purported variance application that is the subject of th e matter now before this

Court. In Maund

, we held that the trial court did not err in sustaining preliminary

objections to the landowners ’ complaint in mandamus

, beca use no deemed

approval had occurred with regard to the purported variance applicat i o n

. Our

decision in Maund , therefore, renders moot the Borough’s land use appeal now

before the Court

, because , as a result of that decision, no deemed approval remain s

to be challenged. Thus, we will dismiss the appea l as moot

. 1

P. KEVIN BROBSON, Judge

1 In Maund , the landowners contended that they filed a variance application with the

Borough’s Zoning Officer (ZO), seeking a hearing before the ZHB , and that the ZHB’s failure to

conduct a hearing resulted in a deemed approval under Section 908 of the Municipalitie s

Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended , 53 P.S. § 10908

. Section

908 (9) of the MPC provides

, in pertinent part:

[W]here the [zoning hearing] board fails to commence, conduct or complete the

required hearing as provided in subsec tion (1.2), the decision shall be deemed to

have been rendered in favor of the applicant unless the applicant has agreed in

writing or on the record to an extension of time. When a decision has been rendered

in favor of the applicant because of the failur e of the board to meet . . . as

hereinabove provided, the board shall give public notice of said decision within ten

days from the last day it could have met to render a decision . . . . If the board shall

fail to provide such notice, the applicant may do so. Nothing in this subsection shall

prejudice the right of any party opposing the application to appeal the decision to a

court of competent jurisdiction.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of California :

:

v. : No. 622 C.D. 2015

: Zoning Hearing Board of : California Borough and : Jeffrey Maund and Eric Pagac :

: Appeal of: Jeffrey Maund and : Eric Pagac :

O R D E R

AND NOW, this 1 4 th day of June , 201 6

, the appeal of Jeffrey Maund

and Eric Pagac is DISMISSED as MOOT

.

P. KEVIN BROBSON, Judge