Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Borough of Brookhaven v. The Zoning Hearing Board of the Borough of Brookhaven, No. 79-5183.
James P. Gannon, Beagan, Gannon & Barnard, for appellant.
Vincent B. Mancini, with him Robert James Jackson, Kassab, Cherry, Curran & Archbold, for appellee, Manuel M. Luz.
President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr. and Palladino. Opinion by Judge Craig. Judge Wilkinson, Jr. did not participate in the decision in this case. Judge Mencer dissents.
[ 58 Pa. Commw. Page 438]
In this zoning case, the Borough of Brookhaven questions an order, by the Court of Common Pleas of Delaware County, which quashed the borough's appeal from a decision of the Brookhaven Borough Zoning Hearing Board (board) on the ground that the appeal was not timely, under Foltz v. Zoning Hearing Board of Monroeville, 13 Pa. Commonwealth Ct. 309, 318 A.2d 410, 412 (1974), because filed more than thirty days after a date of deemed approval under Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC),*fn1 the section which mandates such an approval where the board decision has not been issued within forty-five days after the last hearing date.
Dr. Manuel M. Luz, the landowner/applicant, had applied to the board for permission to use part of his home in a residential district as a dentistry office, either as an accessory use or by way of variance.
The board, pursuant to a hearing held on January 4, 1979, issued a written decision on March 12, 1979, granting the variance requested.
The borough's appeal from that decision to the court of common pleas was dated April 4, 1979, a date which was less than thirty days after the March 12 issuance of the board's written decision, but more than thirty days after February 18, 1979, which would be the date of deemed approval if the landowner's application were deemed to be approved under the MPC.
Here the timeliness of the borough's appeal depends upon whether counsels' agreement on the record, at the board hearing, was legally effective to extend the board's decision deadline to March 12, 1979 under the last clause of Section 908(9), which lifts the forty-five day time limit where "the applicant has agreed in writing to an extension of time."
[ 58 Pa. Commw. Page 439]
We quote from the record the agreement made by counsel (Mr. Doyle is the board's solicitor, Mr. Noel is the attorney for the landowner here, and Mr. Kelly is the attorney for an applicant in a companion case):
MR. DOYLE: Before recess, while both applicants are here, this subdivision, I think we are going to continue this meeting tonight until the Notes of Testimony have been transcribed and lodged. All right, so that begins our 45 day count from ...