Conceptual Development, Inc. v. Zoning Hearing Board of Hampton Township

875 A.2d 1205, 2005 Pa. Commw. LEXIS 296
CourtCommonwealth Court of Pennsylvania
DecidedJune 2, 2005
StatusPublished

This text of 875 A.2d 1205 (Conceptual Development, Inc. v. Zoning Hearing Board of Hampton Township) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conceptual Development, Inc. v. Zoning Hearing Board of Hampton Township, 875 A.2d 1205, 2005 Pa. Commw. LEXIS 296 (Pa. Ct. App. 2005).

Opinion

OPINION BY

Judge FRIEDMAN.

Conceptual Development, Inc. (Conceptual Development) and Landmark Properties, Inc. (Landmark) (collectively, Landowners) appeal from the October 6, 2004, order of the Court of Common Pleas of Allegheny County (trial court), which affirmed the decision of the Hampton Township (Township) Zoning Hearing Board (ZHB), denying Landowners’ request for a variance in connection with the parking and landscaping requirements set forth in the Township’s Zoning Ordinance (Ordinance). The issue before us is whether Landowners were entitled to a deemed approval under section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(9). We hold that Landowners were so entitled, and we reverse and remand.

Landowners own a 5.7-acre parcel located in a highway commercial district at the intersection of Route 8 and McNeal Road, Allison Park, in the Township on which a commercial building and parking lot are situated (Property). Early in 2002, Landowners submitted an application for site plan approval to replace the existing rear parking area with a 9,000 square foot re[1206]*1206tail/office building. At a Township Council (Council) meeting on March 13, 2002, the Township Solicitor (Solicitor) questioned whether the planned parking and landscaping was in accordance with the current ordinance. The Solicitor subsequently informed Landmark in a telephone conversation that he interpreted the Ordinance to apply not only to the proposed expansion, but also retroactively to the existing building on the Property. The Solicitor told Landmark that if it did not agree with this interpretation, Landmark could appeal to the ZHB or seek a variance from the ZHB.1

Landowners filed an appeal with the ZHB, seeking an interpretation of the Ordinance’s parking and landscaping requirements. Additionally, in an April 30, 2002, letter to the ZHB, Landowners requested that:

[T]o the extent said zoning ordinances are not interpreted as permitting construction of the proposed building without bringing the entire parcel into compliance with current off-street parking and landscaping requirements ... the [Landowners] may construct the proposed building as the continuation of a non-conforming structure or use under the theory of vested rights or by variance or variance by estoppel.

(April 30, 2002, Letter from Landmark to the ZHB, R.R. at 29a.)

The ZHB held hearings on the matter on May 28, 2002, and, subsequently, Landowners submitted a memorandum in support of their appeal setting out arguments on each of their theories of relief.2 (Memorandum in Support of Appeal, R.R. at 30a-38a.) At the ZHB’s request, Landmark agreed by letter dated July 1, 2002, to extend the forty-five-day time period in which the ZHB was required to render a decision on Landowners’ appeal. Section 908(9) of the MPC, 53 P.S. § 10908(9). This letter stated in pertinent part: “Landmark Properties agrees that it is in the best interest of all concerned to have the entire [ZHB] present to decide our requested variance [sic] accordingly we ■will waive the time period in which the [ZHB] has to rule upon our variance until July 25, 2002.” (July 1, 2002, Letter from Landmark to the ZHB, R.R. at 67a.)

On July 22, 2002, at a public meeting of the ZHB, the Chairman announced that the ZHB would deny Landowners’ requests for relief because no justiciable issue had been raised. However, no written decision of the ZHB was provided until August 1, 2002, when Landowners received a written decision of the ZHB via facsimile.3 In this written decision, as had been orally announced on July 22, 2002, the ZHB denied Landowners’ variance request, reasoning that Landowners complained of a “matter [that] does not fall [1207]*1207within [the appellate jurisdiction of the ZHB] as no formal determination has been made by the Township that a variance is required.” (August 1, 2002, Decision of the ZHB, R.R. at 71a.)

Landowners appealed the decision of the ZHB to the trial court and included in their Notice of Land Use Appeal the issue of whether the ZHB’s failure to render a written decision within the extended time period, i.e., before July 25, 2002, resulted in a deemed approval of Landowners’ request for variance under section 908(9) of the MPC.4 Without addressing this issue, the trial court remanded to the ZHB to take testimony and make a determination as to whether a non-conforming use can be established and whether a vested right or variance by estoppel exists.

The ZHB held hearings pursuant to the trial court’s remand order and denied Landowners’ appeal based on the theories of non-conforming use, vested rights and vai’iance by estoppel. The ZHB did not address the issue of whether its failure to render a written decision by the July 25, 2002, extension date resulted in a deemed approval of Landowners’ request for a variance.

Once again, Landowners appealed the ZHB’s decision to the trial court, seeking review of the issues decided by the ZHB as well as the “deemed approval” issue which the trial court had yet to consider. In that regard, the trial court determined that no “deemed approval” was warranted. The trial court stated:

On July 1, 2002, [Landowners] agreed to an extension until July 25, 2002, for the [ZHB] to render a decision. On July 22, 2002, the [ZHB] met and their decision was announced. The [ZHB] then had 45 days from July 22, 2002 to render their written decision. On August 1, 2002, [Landowners] received a copy of the [ZHB’s] written decision. [Landowners] are not entitled to a deemed approval because the [ZHB] rendered a written decision within 45 days of July 22, 2002.

(Trial ct. op. at 3.) In its October 6, 2004, order, the trial court affirmed the decision of the ZHB denying Landowners’ appeal.

On appeal to this court,5 Landowners raise only one argument: that because the ZHB failed to render a written decision by the July 25, 2002, extension date granted by Landowners, Landowners are entitled to a deemed approval under section 908(9) of the MPC, 53 P.S. § 10908(9). We agree.

Section 908(a) of the MPC, requires that the ZHB “render a written decision ... within Jp5 days after the last hearing be[1208]*1208fore the [ZHB]” and states that “where the [ZHB] fails to render the decision within the period required ... 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.” (Emphasis added.)

In Swedeland Road Corporation v. Zoning Hearing Board, 107 Pa.Cmwlth. 611, 528 A.2d 1064 (1987), appeal denied, 518 Pa. 621, 541 A.2d 748 (1988), as in the present case, the applicant, upon request from the zoning hearing board, agreed in writing to an extension of time in which the zoning hearing board could render its decision. We held that the effect of an applicant’s written agreement to an extension of the time in such a case is to bind the zoning hearing board to render its decision by the date specified in the written extension. In Swedeland we stated:

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Bluebook (online)
875 A.2d 1205, 2005 Pa. Commw. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conceptual-development-inc-v-zoning-hearing-board-of-hampton-township-pacommwct-2005.