This matter addressed the issue of whether a zoning applicant was entitled to mandamus relief resulting from a Zoning Board’s failure to issue a timely decision on an application seeking zoning relief and setting forth a substantive challenge to the zoning ordinance.  Gibraltar Rock, Inc. (“Gibraltar” ) and Sahara Sand, Inc. (“Landowners”) sought to develop a stone quarry on three parcels of real property totaling 157 acres and being situated in the Light Industrial (LI), Heavy Industrial (HI) and the Residential Modified (R-2M) Districts of New Hanover Township (“Township”), Montgomery County, Pennsylvania.  Prior to 2001, the Township Zoning Ordinance (“Ordinance”) did not permit quarrying in any zoning district within the Township and, in March of 2001, Gibraltar filed a substantive challenge of the Ordinance with the Township Zoning Hearing Board (“Board”) asserting that it unconstitutionally excluded quarrying, thereby entitling it to either a zoning amendment or a special exception permitting the operation of the quarry.

In response, in October of  2001, the Township amended the Ordinance to classify quarrying as a permitted use in the HI District.  Thereafter, in January of 2003, prior to the Board rendering a decision on its 2001 challenge, Gibraltar filed a second challenge with the Board asserting that the amended Ordinance continued to unconstitutionally exclude quarrying in a majority of the Township.  In June of 2007, after conducting 67 separate hearings on the 2001 application, the Board rejected the validity challenge, but granted Gibraltar a special exception to operate a quarry on the portion of the lands situated in the HI District, subject to numerous conditions.

Thereafter, in  January, 2010, after holding 51 hearings, the Board issue a decision denying the 2003 application, but again granting Gibraltar a special exception to operate a quarry on the portion of the lands situated in the HI District, subject to the exact same conditions imposed in the June, 2007, approval.  Both the Township and Gibraltar appealed to the Montgomery County Court of Common Pleas. While these appeals were pending, in December, 2007, the Landowners filed another application with the Board seeking to operate a quarry on the lands included in the prior applications, plus an additional 50 acres titled in Sahara Sand.  In this third application, the Landowners challenged the procedural aspects of the 2003 amendments to the Ordinance, that the original Ordinance was unconstitutional due to its specific exclusion of quarries, and that their proposed quarrying operation was governed solely by Noncoal Surface Mining Conservation and Reclamation Act (“Act’) (52 P.S. §§3301-3326).

The Board conducted a hearing on the 2007 application, at which several neighboring property owners appeared to challenge the application on the grounds that it sought to re-litigate the validity challenge set forth in the 2001 appeal, which remained pending before the trial court.  On July 2, 2009, the Board issued a written decision dismissing the 2007 application and the Landowners filed a zoning appeal in the Montgomery County Court of Common Pleas alleging that the 2007 application was improperly dismissed due to the fact that Sahara Sand was not a party to the 2001 application and, as such, held an independent right to pursue the validity challenge.

In addition, the Landowners filed a Complaint in Mandamus seeking a deemed approval of the 2007 application on the grounds that the Board had not issued a decision within 45 days, as required by Section 908(9) of the Municipalities Planning Code (53 P.S. § 10908).  The trial court dismissed the zoning appeal, a ruling which was reversed by our Commonwealth Court as to the 2007 procedural challenge (2012 Pa. Commw. Unpub. LEXIS 514 (2012)).  Thereafter, the trial court held a hearing on the mandamus action and issued an order dismissing the action with prejudice concluding, inter alia, that, since the Landowners had failed to bring the procedural challenge within thirty (30) days of the enactment of the amended Ordinance, it was time-barred.

On appeal, our Commonwealth Court affirmed. In issuing its ruling, the court acknowledged that Section 10908(9) of the Code provides that a zoning board’s failure to issue a written decision on a zoning application within 45 days of the last hearing on the application results in a deemed approval of the decision.  However, the court noted that, pursuant to Section 916.1(f)(4) of the Code (53 P.S. § 10908(9), a substantive validity challenge to an ordinance will be deemed denied if the zoning board fails to act within 45 days of the last hearing on the challenge.  In this instance, the Landowners’ application included not only a request for zoning relief, but also a challenge to the validity of the Ordinance.  As such, the Board’s failure to issue a written decision within 45 days of the last hearing resulted in a deemed denial, not a deemed approval.