Citation:

Nextel Partners, Inc. v. Clarks Summit Borough, 958 A.2d 587 (Pa. Cmwlth. 2008).

Summary:
Applicant was entitled to a deemed approval of its conditional use application because the Borough failed to hold a hearing within 60 days of receipt of the application. Once an application is accepted and retained by a municipality, the time limitations of the MPC begin.
Case Details:

On June 23, 2005, Nextel filed a conditional use application to construct a cellular communications tower. On July 13, 2005, an engineer issued a letter to the Borough indicating that the application did not comply with several requirements set forth in the ordinance. On July 20, 2005, the Borough Planning Commission met to discuss the conditional use application.  The Borough did not hold a hearing on the matter until September 13, 2005.  At this hearing, Nextel argued that they were entitled to a deemed approval because a hearing was not held within 60 days from the time the application was filed.  The Borough rejected this argument and denied the application because it did not comply with the requirements of the ordinance.

The trial court reversed the Borough’s decision and found that Nextel was entitled to a deemed approval because the Borough did not hold a hearing within the 60 day period required under the MPC. The MPC requires that a hearing be held within 60 days from the date of receipt of an application, unless the applicant has agreed in writing to an extension of time.  The trial court directed the parties to post the property as “deemed approved” in order to trigger the appeal period for any interested parties.  The Borough and an Objector appealed arguing that the conditional use application should not be deemed approved because the initial June 23 application was incomplete.  They argued that a complete application was not filed until August 31, 2005.  Further, the Borough argued that Nextel acknowledged the application was incomplete and agreed to an extension.  Alternatively, the Borough argued that if a deemed approval occurred, the trial court erred in not making findings on the merits of the conditional use application.

The Commonwealth Court found that the 60-day time period began to run on June 23 because the Borough accepted the completed form and deposited the application fee which evidenced that the Borough intended to proceed with the review of the application.  The Commonwealth Court also found that the Borough should have refused to accept the application when Nextel first provided it if it thought that the application was incomplete.

Further, the Commonwealth Court rejected the Borough’s argument that Nextel agreed to an extension of time because some affirmative action is necessary from the applicant.  Here, the Borough did not make it clear to Nextel that an extension was needed, it only alluded to the fact that one may be needed.  Also, no length of time for an extension was given, so even if there was an extension granted, it is too indefinite to be enforced.   Nextel also made it clear at the outset of the hearing process that the 60-day period had expired and that it was not waiving its right to a deemed approval.

Finally, the Borough and the Objector argued that the trial court erred in not issuing a finding on the merits of the conditional use application.  The Commonwealth Court found that the trial court determined that a deemed approval had occurred and, therefore, did not reach the merits of the action.  The property was then posted “deemed approved” which triggers the appeal period for interested parties to challenge the merits of the conditional use application.  If an appeal occurs, then the trial court reviews the merits and issues an opinion on the findings of fact and conclusions of law.  The Borough lacks standing to file such an appeal, but the Objector may file an appeal and has in fact filed an appeal which is currently pending.  The Commonwealth Court affirmed the trial court’s decision.

Date of Decision: 10/10/08

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