Wistuk v. Lower Mount Bethel Township Zoning Hearing Board

In Wistuk v. Lower Mount Bethel Township Zoning Hearing Board, 592 Pa. 419, 925 A.2d 768 (2007), a Lower Mount Bethel Township (Lower Mt. Bethel) zoning officer cited a property owner, Jessica Wistuk (Wistuk), for operating a dog kennel without a permit. Wistuk appealed and sought a special exception and a dimensional variance from the Lower Mt. Bethel Zoning Hearing Board (ZHB), which held five hearings, the last of which was on September 30, 2003. At that hearing, the attorney for the ZHB announced that the record was closed, but that the parties' attorneys could submit briefs and that the ZHB would hold a meeting on October 22, 2003, at which it would consider the case and deliver its decision. The ZHB's attorney stressed that neither party would be allowed to participate at this meeting, but that the meeting would be solely for the ZHB's deliberation and decision of the matter. Although the ZHB's attorney characterized this meeting as a hearing, Wistuk's attorney did not object to the characterization or the procedure and submitted a timely brief. The ZHB met on October 22 and denied Wistuk's requests for a variance and a special exception. The ZHB's attorney "made it clear that a written decision would be issued within forty-five days of that date, and the ZHB issued its written decision on November 28, 2003." Wistuk, 592 Pa. at 423, 925 A.2d at 770. Wistuk filed an action in mandamus, arguing that, under Section 908(9), because the ZHB took more than forty-five days to issue its written decision after the final hearing, which Wistuk argued took place on September 30, the ZHB was deemed to have approved her requests. The trial court denied Wistuk's complaint, and this Court affirmed the trial court's order. On appeal, the Supreme Court reversed this Court. The Supreme Court held that, pursuant to the plain meaning of Section 908(9), a party could only waive the forty-five day requirement by an affirmative statement in writing or on the record. The Supreme Court's discussion of this issue is particularly helpful and, thus, the Court cited it at length: Recently, a Commonwealth Court panel characterized the Wistuk majority position as an extension of its prior precedent establishing a general rule that a failure to object to scheduling of proceedings before zoning hearing boards will result in a waiver of any rights to a deemed approval. See SECCRA I, 916 A.2d at 1241. We agree, however, with Judge Friedman and President Judge Emeritus Colins that such a general rule is not appropriate, as the plain language of Section 908(9) of the MPC, 53 P.S. 10908(9), controls over this judicial pronouncement. See 1 Pa. C.S. 1921(a), (b). As previously noted, Section 908(9) allows for an exception to the forty-five day requirement where "the applicant has agreed in writing or on the record to an extension of time." 53 P.S. 10908(9) accord South Lebanon Township Zoning Hearing Board v. Weber, 140 Pa. Commw. 177, 592 A.2d 127, 130 (Pa. Cmwlth. 1991) (adopting a common pleas court's conclusion that "the code is specific about the need for a written or recorded agreement by the applicant for an extension of time for the board's decision after the 'last' hearing in the matter"). We do not discount that, in some circumstances, such an agreement reasonably may be discerned from written or on-the-record discussions that are not explicitly framed in terms of a formal agreement. . . . Here, nothing in writing or of record fairly reflects any kind of affirmative agreement on Appellant's part to an extension of the forty-five day period set forth in Section 908(9) . . . .In summary, we hold that there is no general rule providing that any failure to object to the scheduling of proceedings before zoning hearing boards will result in a waiver of entitlement to a deemed approval . . . .Wistuk, 592 Pa. at 428-30, 925 A.2d at 773-74. In Wistuk, the Supreme Court stated that "there is no general rule providing that any failure to object to the scheduling of proceedings before zoning hearing boards will result in a waiver of entitlement to a deemed approval." Id. at 430, 925 A.2d at 774. The Supreme Court did not hold, nor does the plain text of Section 908 require, that such an agreement must be explicit. Indeed, the Supreme Court acknowledged that "we do not discount that, in some circumstances, such an agreement reasonably may be discerned from written or on-the-record discussions that are not explicitly framed in terms of a formal agreement." Id. at 428-29; 925 A.2d at 773.