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The 45-day deemed approval period for a ZHB hearing begins on the date the ZHB closes the record, not the date it votes on an application, unless an applicant objects or provides notice to the contrary.
Wistuk v. Lower Mt. Bethel Twp. Zoning Hearing Board,
887 A.2d 343 (Pa. Cmwlth. 2005), Petition for Allowance of Appeal granted, 902 A.2d 970 (Pa. 2006).
Landowner received a zoning enforcement notice for building and operating a commercial kennel in an Agricultural Zoning District without obtaining the requisite zoning permits. Landowner appealed to the zoning hearing board (ZHB), requesting, among other things, a special exception to operate the kennel. The ZHB held five evidentiary hearings. At the conclusion of the fifth evidentiary hearing, the ZHB announced that the record was closed and that it would meet approximately one month later only to deliberate and vote on the application. Landowner was present at the deliberation meeting, but without counsel. Approximately one month after deliberating and voting, the ZHB issued a written decision denying the application. Subsequently, landowner appealed to the court of common pleas arguing, pursuant to MPC Section 908(9), her application should be deemed approved because the ZHB did not issue a written decision within 45 days of its last evidentiary hearing.
Common pleas rejected landowner’s argument, relying on a prior Commonwealth Court decision holding that a Section 908(9) “hearing” was not limited to “proceedings where the Board only received substantive evidence.” In addition, common pleas found that landowner had waived her right to argue that the fifth evidentiary hearing was the last hearing for purposes of the 45 day deemed approval period because “both she and her counsel were present at [that hearing], and neither objected to the . . . briefing period or questioned the effect the briefing would have after the close of the evidence on the 45-day decision period.”
On appeal, in a 5-2 decision, the Commonwealth Court affirmed, refusing to distinguish this case, where no oral argument was allowed at the last meeting, from its prior decision, where oral argument was allowed, but where no evidence was taken.
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