WeCare Organics, LLC v. ZHB of Schuylkill County, 954 A.2d 684 (Pa. Cmwlth. 2008).
Property owner was entitled to a deemed approval of a special exception application because the ZHB failed to issue a written decision within 45 days of the final hearing.
WeCare filed a special exception use request. The Zoning Officer denied the request. WeCare appealed to the ZHB, which held a hearing on November 18, 2003. At the conclusion of this hearing, the ZHB stated that it would announce its decision on December 4, 2003. The ZHB did not state that it would take evidence or hear argument.
The ZHB contended that their attorney asked WeCare’s attorney whether he objected to an extension of time to issue a written decision. The ZHB claims that WeCare’s attorney orally agreed to the extension of time. The ZHB’s attorney sent a letter to WeCare’s attorney providing that he would normally have a written decision within 48 hours of a public announcement of a hearing, but he would require more time. On December 4, the ZHB announced they had denied WeCare’s application. On December 9, WeCare’s attorney sent a letter to ZHB’s attorney stating that he had no objection to taking more than 48 hours to draft the decision.
The ZHB issued their written decision on January 8, 2004, which was 51 days after the November hearing. Pursuant to the MPC, the ZHB must issue a written opinion within 45 days of the final hearing of the matter. On February 2, WeCare filed a Complaint in an Action in Mandamus demanding that the special exception application be a deemed approval because the ZHB failed to issue a timely decision. The trial court found that the parties entered into an oral agreement for the extension of time. WeCare appealed to the Commonwealth Court which affirmed the trial court. WeCare petitioned the Supreme Court, which stayed the petition pending their decision in another case. The Supreme Court then remanded the case to the Commonwealth Court.
The Commonwealth Court first addressed the issue of whether the December 4 meeting was a hearing. At a hearing, a party must be allowed to present evidence and argument. Since there was no opportunity for the presentation of evidence or argument, the December 4 meeting was not a hearing. The last hearing was on November 18, and a written decision had to be issued within 45 days.
Next, the Court considered whether WeCare agreed to an extension of time. A party can only waive the 45 day time period by a written affirmative statement. The ZHB contended that the two letters between the attorneys, when read together, amount to an affirmative waiver. The Commonwealth Court disagreed and found that there was no place in the letter where WeCare’s attorney agreed to a time extension of the 45 day period. The Commonwealth Court held that WeCare had a right to a deemed approval of the application. Further, the Commonwealth Court found that mandamus was an appropriate action because there no other adequate remedy at law. Even though WeCare had an appeal pending in the trial court, a pending land use appeal is not an adequate remedy and a party may still seek recognition of a deemed approval through an action in mandamus. The ZHB also argued that WeCare made an oral agreement and behaved inequitably by later denying that. The Commonwealth Court vacated the trial court’s order and remanded the matter for the trial court’s decision regarding whether WeCare’s attorney orally agreed to an extension of time and, if he did, whether that would constitute unclean hands and bar relief in mandamus.
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