Technical Assistance - Pennsylvania Land Use Law : PA Land Use

Key Topic: Municipal Procedure

Applicant was not entitled to a deemed approval when the Township failed to adhere to the time periods set forth in the MPC because Applicant waived its right to a deemed approval by actively participating in eighteen hearings on the matter.

Southeastern Chester County Refuse Authority (SECCRA) v. Board of Supervisors of London Grove Township, 954 A.2d 732 (Pa. Cmwlth. 2008).

On August 13, 2003, SECCRA submitted an application for a conditional use permit to expand its existing landfill. The Board held its first hearing on October 22, 2003, which was 70 days after the submission of the application. At this hearing, SECCRA asked for a continuance. Subsequently, there were eighteen hearings held on the matter. On August 11, 2005, the Board denied the application.

SERRCA appealed to the trial court arguing that its application should be a deemed approval because the Board violated the time periods set forth in the MPC. The trial court found that SERRCA waived the time periods by participating in the hearing and failing to object. The Commonwealth Court affirmed. The Supreme Court vacated and remanded the case to the Commonwealth Court.

SERRCA argued on remand that it did not consent to the Township’s violation of the time period set forth in Section 908(1.2) and that the Township violated the time periods by failing to hold its first hearing within 60 days of the application. The Township argued that SERRCA affirmatively consented to the late hearing by actively participating in the hearing process. The Commonwealth Court reviewed the Supreme Court’s holding in a previous case which stated that a person must affirmatively waive the time period. However, the Supreme Court did find that there are times when an agreement to waive the time periods can be discerned from written or on the record discussions. The Commonwealth Court also reviewed the Black’s Law Dictionary definition of “agreement”, which provides that an agreement may be evidenced by manifestations or circumstances. The Commonwealth Court found that SERRCA’s actions showed that it was waiving the time periods. SERRCA proceeded to attend eighteen hearings on the record, and at each hearing, presented evidence and made arguments. SERRCA’s actions at the hearings were inconsistent with an intention to claim a deemed approval.

Next, SERRCA argued that delays of more than 45 days between some of the hearing resulted in a deemed approval. Again, the Commonwealth Court found that SERRCA’s active participation in the meetings constituted consent to the delay. Finally, SERRCA argued that because the Township conducted more hearings after its first 100 days than did SERRCA, that SERRCA is entitled to a deemed approval. Section 908(1.2) of the MPC provides that an applicant shall complete their case within 100 days of the first hearing, and persons opposed to the application shall complete their case in chief within 100 days after the close of the applicant’s case in chief. After the time periods have elapsed, applicant and those opposed to the application may be granted additional hearings provided both are given the same number of hearings. SERRCA, however, counted the time period as beginning on November 20, 2003 rather than October 22, 2003 when they asked for a continuance. The Commonwealth Court found that the October 22 meeting was a hearing because a hearing is a proceeding at which a party has the opportunity to present evidence and argument. Although SERRCA chose to ask for a continuance, they had the opportunity to be heard. The Commonwealth Court found that both the Township and SERRCA each had four additional hearings after their respective 100-day time period had elapsed. Therefore, SERRCA had no right to a deemed approval.

Opinion Date: July 30, 2008

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