OPINION
The initial question presented is whether a landowner's acquiescence to the conduct of a meeting of a zoning hearing board to entertain written briefs, deliberate, and render a decision constituted a waiver of the statutory entitlement to a deemed approval of a special exception and variance, where the Board did not issue a written decision within forty-five days after the close of the evidentiary record. We also consider whether such a meeting constitutes a hearing for purposes of the forty-five-day requirement.
Pertinent to this question, Section 908(9) of the Municipalities Planning Code, governing hearings before zoning hearings boards, specifies, in relevant part:
53 P.S. § 10908(9) (emphasis added; footnote omitted).The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the board or hearing officer. . . . Except for challenges filed under section 916.1[, pertaining to substantive validity challenges,] 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.
By the issuance of an enforcement notice, a local zoning officer charged Appellant, Jessica Wistuk, with operating a dog kennel on her property in Lower Mount Bethel Township's agricultural zoning district without a permit. Appellant filed an appeal with Appellee, the Lower Mount Bethel Township Zoning Hearing Board (the "Board"), together with a request for a special exception to permit continued kennel operations, as well as a variance to allow her to maintain a dog run within three-hundred feet of the nearest adjoining residence. *Page 422
The Board held hearings during 2003 on May 7, July 15, August 14, August 20, and September 30. At the conclusion of the September 30 hearing, the Board solicitor closed the record, indicating that, because of the lateness of the hour, counsel for both parties could submit written legal arguments to him in lieu of oral argument. He explained that the briefs would be circulated among the Board members and discussed beginning at 7:30 p.m. on October 22, 2003, at which time the Board would also reach and announce a decision. The solicitor admonished that none of the participants would be permitted to speak at this session. See N.T., September 30, 2003, at 133 (reflecting the solicitor's statement: "And I would emphasize that from when the Board resumes to deliberate, it's not going to be for argument or comment by anyone; it will be for discussion and deliberation and voting."). Along these lines, the solicitor also provided some assurance for those who could not be present at the October session, indicating:
Id. Appellant's counsel did not object to this procedure and ultimately submitted a timely brief.So for those of you who can't come back, you can have some assurance that there's nothing going to change about the hearing. It's going to be deliberation and voting. The record is closed.
On October 22, 2003, the Board reconvened for deliberation in the absence of counsel. The Board solicitor reiterated his previous admonishments, as follows:
[B]efore we start to deliberate, I'll reiterate my instructions from the last time. No one is to speak to the Board during its deliberations or really at any time regarding this matter. I assured all the people that were here last time there will be no further argument or testimony; that is not to take place.
You are welcome to observe. The Board will deliberate and then it will render its decision on the record.
N.T., October 22, 2003, at 2. Off the record, the Board deliberated on the evidence and the written legal arguments. It then voted on the record to deny both the variance and the *Page 423 special exception. The solicitor made it clear that a written decision would be issued within forty-five days of that date, and the Board issued its written decision on November 28, 2003.
Subsequently, Appellant filed a complaint in mandamus in the common pleas court, relying on Section 908(9)'s forty-five-day deemed-approval provision, as quoted above. The complaint highlighted that: the record of the proceedings before the Board was closed on September 30, 2003; the October 22, 2003, meeting was for the designated and limited purpose of deliberating and rendering a decision; at no time did Appellant's counsel agree on the record to an extension of the forty-five-day period for written decision under Section 908(9); and the Board did not issue its written decision until November 28, 2003, fifty-nine days after the September 30, 2003, hearing. In these circumstances, Appellant asserted that her application for a special exception and variance were deemed approved on November 14, 2003, forty-five days after the September 30 hearing, the last date on which evidence was taken and the date on which the record was closed. Appellees' responses characterized the October 22, 2003, meeting as a hearing and indicated that Appellant did agree on the record to its scheduling as such.
The common pleas court denied relief after oral argument on a limited evidentiary record consisting of the transcripts of the September 30 and October 22 Board proceedings, adopting Appellees' position that the October 22 meeting constituted a hearing. In this regard, the common pleas court relied onHogan, Lepore Hogan v. Pequea Township ZoningBoard, 162 Pa.Cmwlth. 282, 638 A.2d 464 (1994), as support for the proposition that the concept of a hearing, for purposes of Section 908, is not limited to a proceeding in which a zoning hearing board receives substantive evidence. See id. at 289-90, 638 A.2d at 468 (holding that, although the record of a zoning hearing was closed to further substantive evidence, a later board meeting at which counsel offered oral argument constituted the final hearing for purposes of Section 908(9));see also Gaster v. Township of Nether Providence, *Page 424 124 Pa. Cmwlth. 595, 601, 556 A.2d 947, 949-50 (1989) (holding that the term "hearing" includes specially scheduled sessions for argument by counsel). The court observed that the Hogan court derived support for this proposition from Section 908(5), which, in describing zoning hearings, prescribes that "[t]he parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant evidence." Id. at 290,638 A.2d at 468 (quoting 53 P.S. § 10908(5)) (emphasis added). The common pleas court found no meaningful distinction, under either Section 908(5) or in practical terms, between oral argument (as was presented in Hogan) and written argument (such as it found was presented here).
Further, the court expressed the belief that its ruling in no way impeded the entitlement to timely decisions on zoning applications as provided by Section 908(9), since other terms included within Section 908 ensure the continued progress of serial hearings where necessary. Additionally, the court observed that, if it accepted the position that the September 30 hearing was the final one, the Board would have forfeited a significant portion of the forty-live days to which it was entitled under Section 908(9), which could have yielded a hurried decision, or one made without the benefit of significant legal argument. The court recognized that, under its reasoning, one alternative would be to measure the forty-five day window from the date on which written brief were due or received; however, it concluded that a meeting of the Board was necessary to constitute a hearing for purposes of Section 908(9). Thus, it determined that "the final hearing for § 10908(9) is the hearing after which no further substantive evidence or argument of parties or counsel is received."
The common pleas court also took the position that Appellant waived her right to contend that September 30 was the last hearing. In this regard, the court again relied uponHogan, in which the Commonwealth Court set out an alternative waiver disposition. See Hogan,162 Pa.Cmwlth. at 291, 638 A.2d at 469 ("even if Hogan otherwise would have been *Page 425 entitled to a deemed approval of its special exception application, it waived its right to that deemed approval by failing to object to the previously announced argument date."). The common pleas court reasoned:
Here, [Appellant] neither objected to the post-September 30, 2003 briefing period or expressly refused to extend the forty-five day period for the Board to issue a written decision. Further, on October 22, 2003, [the Board solicitor] clearly stated that the Board would have forty-five days from October 22, 2003 to render a decision. Under [Appellant's] view that September 30, 2003 was the final hearing, the Board still had twenty-three days from October 22, 2003 to render its written decision had [Appellant] brought this issue to its attention. Thus, [Appellant] is now estopped from arguing that October 22, 2003 was the final hearing. The Board's November 28, 2003 written decision was within twenty-eight days of October 22, 2004. [Appellant] is, accordingly, not entitled to a deemed approval.
A divided Commonwealth Court affirmed in a published opinion.See Wistuk v. Lower Mt. Bethel Twp. Zoning Hearing Bd.,887 A.2d 343 (Pa.Cmwlth. 2005) (en banc). Relying onHogan, the majority reasoned that, because Appellant failed to object to the post-September 30 briefing period or question the effect of that period on the 45-day decision period, she waived her right the contend that the 45 days began from September 30, 2003. The majority characterizedHogan as "right on point" relative to the waiver question, explaining:
Wistuk, 887 A.2d at 345-46. Upon its conclusion in this regard, the majority deemed it unnecessary to determine whether the Board's October 22 meeting constituted a hearing.While the evidentiary hearing in this case ended at the September 30, 2003 hearing, the Board made it clear that the record would remain open until October 22, 2003, to receive briefs. As the trial court in this case pointed out, at no time did [Appellant] or her counsel object to the post-September 20, 2003 briefing period or question the effect the briefing offered by the Board on the 45-day decision period. When she failed to object to allowing the record to remain open until October 22, 2003, to receive briefs, [Appellant], like the applicant in Hogan, waived her right to *Page 426 contend that the 45 day period began from the September 30, 2003[sic].
Judge Friedman filed a dissenting opinion, joined by President Judge (now President Judge Emeritus) Colins. SeeWistuk, 887 A.2d at 346-51 (Friedman, J., dissenting). Concerning the waiver question upon which the majority grounded its holding, the dissent opined that Appellant was under no obligation to raise the question of the running of the forty-five-day limitations period before the Board. In this regard, the dissent observed that the matter of the forty-five day period was never raised by the Board solicitor, or anyone else for that matter, on the record of the September 30 hearing. Thus, Judge Friedman found it insignificant that neither Appellant nor her counsel objected to the scheduling of a Board meeting for deliberation purposes within the forty-five-day period. See id. at 350. The dissent also distinguishedHogan on the basis that, during the last hearing in that case, all counsel were consulted concerning the application of the forty-five-day requirement, and acquiescence to a deviation was discerned from the record. See Wistuk,887 A.2d at 350-51 (Friedman, J., dissenting). Here, however, Judge Friedman noted that the Board solicitor did not suggest that more hearings would be needed after the September 30 hearing; rather, he simply announced that the Board would meet to deliberate and render a decision on October 22, 2003, a date only twenty-two days later. Because Section 908(9) is specific about the need for a written or recorded agreement by the applicant for an extension of time for the zoning board's written decision after the last hearing in a matter,see 53 P.S. § 10908(9), Judge Friedman found no written or recorded waiver. See id. at 351.
In a footnote, the dissent also addressed the common pleas court's position concerning "estoppel," as follows: *Page 427
The trial court also found that [Appellant] was estopped from arguing that October 22, 2003, was not the final hearing because she failed to object when, at that meeting, [the Board's solicitor] announced that the Board would render its written decision within forty-five days of the October 22, 2003, Board vote. Because the Board still would have had twenty-three days to issue a written decision, the trial court suggests that [Appellant's] counsel needed to express his view that the forty-five days began to run from the September 30, 2003, hearing date. However, as the trial court itself noted, no counsel for any of the parties even appeared at tie October 22, 2003, meeting, having been assured that their presence would not be necessary. Further, and more important, there is no case law that provides a duty to remind the Board of the forty-five day rule. As stated, the forty-five day limitation cannot be waived by inaction but only by some positive waiver in writing or on the record, neither of which occurred here.