Appeals from the Order of the Court of Common Pleas of Montgomery County, in case of Swedeland Road Corporation v. Zoning Hearing Board of Upper Merion Township, No. 85-0471, Zoning Appeal and No. 85-0578 in mandamus, dated June 2, 1986.
Parke H. Ulrich, Fox, Differ, Callahan, Ulrich & O'Hara, for appellant.
Gregory J. Dean, Meneses & Dean, for appellee.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.
[ 107 Pa. Commw. Page 612]
Swedeland Road Corporation (appellant) appeals from an order of the Court of Common Pleas of Montgomery County which affirmed a decision of the Zoning Hearing Board of Upper Merion Township (Board).
On July 10, 1984, the appellant applied to the Board for a special exception to permit construction of storm water basins in the Gulf Mills Corporate Center, located in an area designated as a flood plain by the Upper Merion Zoning Code (Code). Pursuant to the Code, the Board was required to receive and consider the report of the Township Planning Commission (Commission) before rendering a decision.*fn1 The Commission's report had not been received as of August 9, 1984, when the Board conducted its hearing on appellant's application.
[ 107 Pa. Commw. Page 613]
Following the hearing, the appellant's representatives met with the Commission, and the Township's engineer thereafter submitted questions to the appellant which required information and clarification necessary for the Commission to properly and timely prepare a recommendation for the Board. To permit the engineers sufficient time to complete their dialogue, the Board asked the appellant to grant it an extension of time in which to render a decision. The appellant agreed in writing to an extension but imposed a deadline of October 22, 1984. On October 19, 1984, three days before the deadline, the appellant's engineers responded by letter to the questions requested by the Township engineer. On November 15, 1984, the Township engineer and the Commission furnished their general approval of the concept of a regional storm water basin. On December 13, 1984, the Board denied the appellant's application. The appellant appealed, contending that inasmuch as the Board failed to render a written decision by October 22, 1984, the date agreed upon by the appellant, the Board was deemed to have rendered a decision in appellant's favor under the terms of 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).
The trial court, without taking additional evidence,*fn2 held that the Board's decision was not untimely for purposes of Section 908(9) because: (1) the appellant's delay in responding to the questions posed by the Township's engineer estopped it from contesting any delay in the Board's decision; (2) once the appellant had agreed to an extension, it had effectively waived the forty-five day
[ 107 Pa. Commw. Page 614]
limit; and (3) there was not, in any case, a technical lapse of forty-five days from the date of the last hearing, since the hearing had not concluded ...