Wistuk v. Lower Mt. Bethel Twshp ZHB, 925 A.2d 768 (Pa. 2007).

There is no general rule providing that failure to object to scheduling of proceedings will result in a waiver of entitlement to a deemed approval.
Case Details:

Landowner received a zoning enforcement notice for operating a dog kennel in an agricultural zoning district without obtaining the requisite permits.  Landowner appealed to the Zoning Hearing Board (ZHB) requesting a special exception to operate the kennel.  At the fifth hearing held on September 30 before the ZHB, the ZHB announced that the record was closed and that it would meet a month later to deliberate and vote on the application. The solicitor reinforced that the record was closed and stated that nothing was going to change about the hearing. The ZHB met and deliberated on October 22.  A month after the October 22 meeting, the ZHB denied the application.  Landowner appealed to the common pleas court arguing that her application should be deemed approved according to MPC Section 908(9) because the ZHB did not issue a written decision within 45 days of its last evidentiary hearing.  The common pleas court rejected Landowner’s argument finding that the October 22 meeting was a hearing and that Landowner agreed on the record to its scheduling. Landowner appealed to the Commonwealth Court, which affirmed the trial court.

Section 908(9) of the MPC provides that “where the board fails to render the decision within the period required by this subsection . . ., the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time.”  In this case, the Supreme Court found nothing of record demonstrating that Landowner had agreed to an extension of time.  Further, the ZHB and the solicitor stated the record was closed and gave no indication that they would not issue a decision within 45 days.  The Court determined that a failure to object to the scheduling of zoning proceedings does not result in a waiver of entitlement to a deemed approval.

Next, the Supreme Court decided that the October 22 meeting was not a hearing because the parties were not “afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant issues.”  In addition, the Court found that Landowner did not extend the 45 period by agreement, nor did she grant an extension by waiver by not objecting to the scheduling of the deliberation proceeding.

Date of Decision: 6/25/07

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