Meeting deadlines is something we all strive for. Whether you’re handing in a project at work, or meeting someone for coffee, making yourself aware of the time is something we do every day. And failure to meet such deadlines creates the potential for undesirable consequences. The same is true for municipalities and developers, as failure by either party to familiarize themselves with the time-restraints imposed by the Pennsylvania Municipalities Planning Code (the “MPC”) for zoning hearings can create major headaches. This post is the second post of a four-part series (Post 1, Post 3, Post 4 to come) and follows our review, in Post 1, of the notice requirements that a board must follow prior to a zoning hearing. This post explores two important deadlines to which a board must adhere.
Under Section 908(1.2) of the MPC, the initial hearing before a board must commence within 60 days from the date the board receives the application, unless the applicant agrees in writing to an extension of time. If the board fails to meet this requirement, one of two things can happen. Most commonly, failure to commence a hearing within the prescribed period results in a “deemed approval” of the application. For example, in Nextel Ptnrs. Inc. v. Clarks Summit Borough, 958 A.2d 587 (Pa. Commw. Ct. 2008), a conditional use application, originally denied by a board, was deemed approved by the courts on appeal because the first hearing on the application did not commence until 82 days after the application was filed. Alternatively, the outcome under Section 916.1(f)(1) of the MPC, in cases of a substantive validity challenge (i.e. a challenge to the zoning ordinance’s constitutionality), is a “deemed denial” of the application. A deemed denial means the application is denied and the applicant has 30 days to appeal to the courts.
The second major time requirement, under Section 908(9) of the MPC, is that a board must render a written decision within 45 days of the last hearing. Like the commencement requirements, failure by a board to meet this deadline usually constitutes a deemed decision. For example, the Commonwealth Court ruled in Gib. Rock, Inc. v. New Hanover Twp. Zoning Hearing Bd., 68 A.3d 1012 (Pa. Commw. Ct. 2013), that the failure by a board to issue a written decision within 45 days after the last hearing on a substantive validity challenged resulted in a deemed denial.
Depending on the circumstances, a deemed decision might be a preferred outcome. However, in most cases a deemed decision generally is less preferred by developers and municipalities, alike, because it frequently leads to appeals and unwanted delays. As such, we encourage both developers and municipalities to be cognizant of these deadlines to avoid deemed decisions.
Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.
Edited and revised 1/7/19 to account for Post 3 and pending Post 4.