Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board

Judge Friedman also addressed the underlying question that was not addressed by the majority, namely, whether the October 22 meeting constituted a hearing for purposes of Section 908(9). Initially, like the common pleas court, the dissent recognized that, under Section 908, a hearing is more than just a proceeding in which to take testimony or other substantive evidence. Judge Friedman, however, believed that it went too far to characterize a meeting solely for purposes of deliberation and decision as a hearing. In this regard, she distinguished the decisions relied on by the common pleas court as involving the presentation of oral argument, which was forbidden at the October 22 meeting in this case. See Wistuk,887 A.2d at 350 (Friedman, J., dissenting) ("Because the Board's October 22, 2003, meeting clearly was not scheduled for the equivalent purpose of the oral arguments allowed in Hogan andGaster, I believe the trial court's reliance on those cases is misplaced."). In support of her conclusion, Judge Friedman referenced South Lebanon Township Zoning HearingBoard v. Weber, 140 Pa.Cmwlth. 177, *Page 428 180-81, 592 A.2d 127, 129 (1991) (holding that a meeting to announce deliberations did not qualify as a hearing for purposes of Section 908(9)), and Quality Food Markets, Inc.v. Zoning Hearing Board, 50 Pa.Cmwlth. 569, 572,413 A.2d 1168, 1169 (1980) (concluding, at least implicitly, that a zoning hearing board meeting for "deliberation and discussion" among the board members was not a hearing).

The questions presented in this appeal center on the Commonwealth Court's and the common pleas court's interpretation of a statute, Section 908(9), and our review is plenary.

Recently, a Commonwealth Court panel characterized theWistuk 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. SeeSoutheastern Chester County Refuse Auth. v. Board of Supervisorsof London Grove Twp., 916 A.2d 1237, 1241 (Pa.Cmwlth. 2007). 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) controls over this judicial pronouncement. See 1 Pa.C.S. § 1921(a), (b).¹ 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 Weber, 140 Pa.Cmwlth. at 183,592 A.2d at 130 (adopting a common pleas court's conclusion that "[t]he 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 *Page 429 terms of a formal agreement. However, in line with Judge Friedman's rationale, we find no such extension or waiver presented on the record of this case. 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. Further, at the September 30 hearing, the Board's solicitor all but stated that that hearings on the matter were concluded. See N.T., September 30, 2003, at 133 (reflecting the solicitor's advice, as follows: "So for those of you who can't come back, you can have some assurance thatthere's nothing going to change about the hearing" (emphasis added)). Moreover, the session for Board deliberations was scheduled well within a forty-five-day period following the conclusion of the evidentiary proceedings on September 30, with no contemporaneous suggestion that the Board did not intend to issue its written decision within such period. In light of this background, Appellant cannot be shown even to have been placed on fair notice that the forty-five-day requirement would be deemed by the Board to run from some later date, let alone to have expressed agreement with such an understanding.²

We also find that the Board solicitor's position concerning the forty-five-day period as developed at the October 22 meeting has no relevance, since the solicitor previously had advised participants that there was no need to be present on October 22; Appellant's counsel in fact was not present; and there is no evidence that Appellant was present at that meeting.³ *Page 430

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, and the circumstances presented in this case did not give rise to a waiver or estoppel relative to the forty-five-day period for written decision under Section 908(9).⁴

The remaining issue is whether the Board's October 22 meeting for purposes of deliberation and decision represented a hearing.⁵ On this question, we agree with Judge Friedman as well. Initially, relevant provisions of the Municipalities Planning Code define the term "hearing" very broadly, as "an *Page 431 administrative proceeding conducted by a board pursuant to section 909.1[, 53 P.S. § 10909.1]." 53 P.S. § 10107(b). Section 908, however, prescribes that a zoning hearing board "shall conduct hearings and make decisions in accordance with the following requirements," to include that "[t]he parties shall . . . be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant issues." 53 P.S. § 10908(5). None of these features was attendant to the October 22 meeting in this case. Although the Board considered the parties' briefs at the session (which obviously contained "argument"), the briefs were not presented to the Board on October 22; rather, the protocol established by the Board solicitor was that the briefs were to be submitted in advance to him and circulated by him to the Board. Like Judge Friedman, therefore, we consider the circumstances to be similar to those presented in the Weber and Quality FoodMarkets decisions. See Wistuk, 887 A.2d at 350 n. 7 (Friedman, J., dissenting) (citing Weber,140 Pa.Cmwlth. at 180-81, 592 A.2d at 129, and Quality FoodMarkets, 50 Pa.Cmwlth. at 572, 413 A.2d at 1169).

We recognize the severity of Section 908(9), in that it forecloses merits-based decisions concerning land-use matters, which may be of tremendous consequences to local governments and citizens, based on procedural non-compliance by a zoning hearing board. It is not our task, however, to evaluate the wisdom of this approach or its specific aspects. Rather, where as here there is no constitutional challenge, our function is to apply the law as prescribed by the General Assembly. On this record, we conclude that it would strain the relevant statutory language to find that the Board's October 22 session convened solely for purposes of deliberation and decision represented a hearing, or, or, again, that Appellant waived her entitlement to a decision within forty-five days after the final Board hearing on September 30.⁶ *Page 432

The order of the Commonwealth Court is reversed, and the matter is remanded for further proceedings consistent with this opinion.

Justice NEWMAN did not participate in the consideration or decision in this matter.

¹ Although President Judge Emeritus Colins authored theSoutheastern Chester County Refuse decision, its reasoning in this regard was grounded on precedent arising out of Wistuk, in which he joined Judge Friedman's dissent.See Southeastern Chester County Refuse,916 A.2d at 1241 ("Unless and until our decision in Wistuk is overturned by the Supreme Court, we are bound by this Court'sen banc decision in Wistuk.").

² For these reasons, as well as those articulated by Judge Friedman, we also agree with her conclusion that the circumstances do not support an estoppel with regard to Appellant's ability to benefit from Section 908(9)'s forty-five-day requirement.

³ Appellee, Lower Mount Bethel Board of Supervisors, argues that any decision by Appellant and/or her counsel not to appear at the October 22 meeting was at their own risk See Brief for Appellee Lower Mount Bethel Township Board of Supervisors at 24. At least with regard to Section 908(9), we disagree. Again, what is required by the General Assembly under Section 908(9) to support an extension and/or waiver is a written or on-the-record agreement by the applicant. No such agreement can arise out of oral statements attributable to the Board which are made at a meeting that Appellant and her counsel were not required to attend and cannot be shown to have attended.

⁴ To the extent that Hogan reflects the general approach described in Southeastern Chester CountyRefuse that any failure to object to scheduling will result in a waiver, it is disapproved in line with our present reasoning. Hogan's rational is also questionable upon consideration of the portions of the record quoted in the opinion. The Hogan court found that the applicant "did . . . expressly refuse to grant the Board an extension to the 45-day period in which to issue a written decisionafter the last hearing," but that the applicant nevertheless waived its entitlement to a deemed approval by failing to object to an announced date for argument of September 19, 1991, that was beyond the forty-five day period. Hogan,162 Pa.Cmwlth. at 290-91, 638 A.2d at 468 (emphasis in original). However, the Commonwealth Court's opinion otherwise suggests that any agreement by counsel to the September 19 date for oral argument was conditional. See id. at 291 n. 3,638 A.2d at 469 n. 3 (reflecting the statement of the applicant's counsel that "if we don't get a decision promptly and I certainly think a month is an appropriate time then I am not going to grant an extension to the 19th of September."). There is nothing presented on the face of the Hogan opinion indicating that the zoning hearing board agreed to such condition; indeed, the board issued its written decision on October 28, 1991, more than thirty days after September 19.See Hogan, 162 Pa.Cmwlth. at 287, 638 A.2d at 467. In these circumstances, we have difficulty with the Commonwealth Court's treatment of counsel's comments as acquiescence.

⁵ Having disposed of the sole issue addressed by the Commonwealth Court majority, this case could be remanded to the intermediate appellate court for disposition of all remaining questions. However, as the above issue was raised in the petition for allowance of appeal, has been fully briefed before us, and represents a matter of public importance in its own right, we will proceed to resolve it. Cf. Parsowith v.Commonwealth, Dep't of Revenue, 555 Pa. 200, 208,723 A.2d 659, 663 (1999) (taking a similar approach in addressing, for the sake of judicial economy, a merits issue that had not been addressed in the intermediate appellate court).

⁶ Certainly, prudence would counsel that, in cases where there is any doubt concerning the commencement of the forty-five-day period for written decision, the matter should be addressed openly and directly on the record, and that zoning hearing boards should apply a conservative approach where no agreement can be reached, in light of the serious consequences of a deemed approval. Zoning hearing boards may also apply reasonable strategies to assure adequate deliberation in complex cases, such as requiring the submission of written briefs prior to a timely-scheduled oral argument, which, under prevailing law, would assure that all necessary material is before the board upon the commencement of the forty-five day period for review and written decision.