           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 14, 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 Borough challenges 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 matter, 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 complaint,
the landowners sought relief based on the same claimed deemed approval of a
purported variance application that is the subject of the 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, because no deemed
approval had occurred with regard to the purported variance application. 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 remains
to be challenged. Thus, we will dismiss the appeal 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 Municipalities
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 subsection (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 failure 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.



                                                  2
          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                            :



                                  ORDER


            AND NOW, this 14th day of June, 2016, the appeal of Jeffrey Maund
and Eric Pagac is DISMISSED as MOOT.




                               P. KEVIN BROBSON, Judge
