Gibraltar Rock, Inc. v. New Hanover Twp. Zoning Hearing Bd., 68 A.3d 1012 (Pa. Commw. Ct. 2013).
Procedural challenge not entitled to deemed approval.
Gibraltar Rock, Inc. sought various zoning permits and relief so as to develop a stone quarry on three parcels located in the Township. Following more than 67 hearings, the Township denied Gibraltar’s challenge to the validity of a zoning amendment passed by the Township and intended to moot Gibraltar’s original substantive challenge. Following 51 additional hearings, the Township denied Gibraltar’s second challenge to the same ordinance. In both cases, the Zoning Hearing Board granted a special exception subject to numerous conditions. The decisions were appealed and Gibraltar filed another application for the use and included an additional 50 acres and a second landowner – this time, Gibraltar challenged the procedural aspects of the ordinance. The Zoning Hearing Board denied the challenge because it reasoned that Gibraltar was litigating the same claims a second time.
Gibraltar filed a land use appeal and a mandamus action alleging the most recent application was improperly dismissed because the second landowner was not part of the original application and did not have an opportunity to litigate the issues. In addition, Gibraltar argued in its mandamus action that deemed approval was warranted because the Zoning Hearing Board had not issued a decision on the most recent application within 45 days, as required by Section 908(9) of the MPC. The trial court dismissed the case after ruling Gibraltar failed to bring the procedural challenge within 30 days of the enactment of the ordinance.
The Commonwealth Court affirmed. It held, although Section 908(9) of the MPC requires deemed approval when a zoning hearing board fails to issue a written decision within 45 days of the last hearing on the application, Section 916.1(f)(4) of the MPC required deemed denial when a substantive validity challenge is not acted upon within 45 days of the last hearing on the challenge. Because Gibraltar’s application sought zoning relief and challenged the validity of the zoning ordinance, the Board’s failure to issue a written decision within 45 days of the last hearing resulted in a deemed denial, not a deemed approval.
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