Appeal from the Order of the Court of Common Pleas of Northampton County, in the case of Joseph Ciccone & Sons v. Lower Saucon Township Zoning Hearing Board and William D. Baker and Kathryn B. Baker, and Steel City Fire Company and Community Association, No. 1986-C-7601.
Wesley M. Wasylik, Bartos, Broughal & Wasylik, for appellant.
George A. Heitczman, O'Hare & Heitczman, for appellee, Lower Saucon Township Zoning Hearing Board.
E. Keller Kline, III, Kline and Kline, for appellees, William D. Baker and Kathryn B. Baker and Steel City Fire Company and Community Association.
Judges Craig, McGinley and Smith, sitting as a panel of three. Opinion by Judge Craig.
[ 115 Pa. Commw. Page 239]
Under § 908(9) of the Pennsylvania Municipalities Planning Code (MPC),*fn1 governing zoning hearing boards, which reads:
Where the board fails to . . . hold the required hearing within sixty days from the date of the
[ 115 Pa. Commw. Page 240]
applicant's request for hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing to an extension of time. . . .
Is a variance applicant whose attorney orally requested postponement of an initial hearing date, set on the board's regular meeting day in March, entitled to deemed approval if the board actually conducts its first hearing 73 days after the appeal filing date but just 14 days after the board's regular meeting date in April?
Applicant Ciccone has appealed from an order by Judge Franciosa of the Court of Common Pleas of Northampton County, that denied his mandamus request for a deemed approval of his validity variance application to use land for a quarry.
Of course, the applicant's appeal to the zoning board, filed February 21, 1986, constituted an initial request for a hearing. When the applicant's attorney orally requested a postponement of a hearing date set for March 17, the board's regular monthly meeting date, he stated that the next regular monthly hearing date, April 21, "sounded fine" to him, according to his own testimony. Although the board's inability to muster a quorum on April 21 resulted in the first hearing being actually held on May 5, the latter date fell only about 14 days after April ...