Telvil Construction Corp. v. Zoning Hearing Board of East Pikeland Township

DISSENTING OPINION BY

President Judge COLINS.

I must respectfully dissent from the well-reasoned, scholarly opinion of the majority.

Where, as here, a municipality requires that the subdivision application process begin with submission of a sketch plan, the requirements of § 508(3) of the MPC, 53 P.S. § 10508(3), attach, and a decision must be rendered or the sketch plan is deemed to have been approved. I respectfully disagree with the majority and believe that Telvil is entitled to protection under 53 P.S. § 10508.

Although Article V of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10501-10515.3, contemplates a single-step preliminary plan approval process, municipalities may require a two-step preliminary approval process, and submission at the first stage may then be subject to the deemed approval provisions of MPC section 508(3). Belber v. *659 Lower Merion Township, 163 Pa. Cmwlth. 127, 639 A.2d 1325 (1994) (citations omitted).

Failure of the governing body or agency to render a decision and communicate it to the appellant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented unless the applicant has agreed in writing to an extension of time or change in the prescribed manner of presentation of communication of the decision, in which case, failure to meet the extended time or change in manner of presentation of communication shall have like effect. § 508(3) of the Municipalities Planning Code, 53 P.S. § 10508(3).

Here, although the defects in the tentative sketch plan may have been substantive, the Township is still required to assess the plan as submitted. The Township did not issue a decision within the prescribed time period; therefore, I would hold that the tentative sketch plan must be deemed approved.

This section of legislation was enacted to remedy indecision and protracted deliberations on the part of local governing bodies and to eliminate deliberate or negligent inaction on part of the governing officials. Morris v. Northampton County Hanover Township Board of Supervisors, 39 Pa. Cmwlth. 466, 395 A.2d 697 (1978). While I do not believe that the Board was intentionally trying to delay Telvil’s plan, a decision must be rendered when a sketch plan is submitted.

The majority points out that the ZHB denied the validity challenge, and thus there obiter dictum concerning the completeness of the plan was of no consequence to its order. While the ZHB may have denied the validity challenge, the Township never properly denied the sketch plan as 53 P.S. § 10508(3) mandates.

The majority quotes the trial court in footnote 4 that “telvil obviously acquiesced, even if only sub silentio, to this procedure.” However, under 53 P.S. § 10508(3), a party must agree in writing to such a change. There was no such written agreement in this case and for this reason I would find that the sketch plan should be deemed approved.