Heisler's Egg Farm, Inc. v. Walker Twp. ZHB ( 2020 )


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  •              IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Heisler’s Egg Farm, Inc.,                       :
    Appellant                     :
    :
    v.                              :
    :
    Walker Township Zoning Hearing                  :
    Board and David Bensinger and                   :    No. 780 C.D. 2017
    Margaret Bensinger                              :    Argued: November 14, 2018
    BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    HONORABLE ELLEN CEISLER, Judge1
    OPINION
    BY JUDGE FIZZANO CANNON2                             FILED: May 28, 2020
    Heisler’s Egg Farm, Inc. (Applicant) appeals from an order of the Court
    of Common Pleas of Schuylkill County (trial court), dated May 22, 2017, that
    affirmed the Walker Township Zoning Hearing Board’s (Board) denial of
    Applicant’s request for a special exception to expand its existing egg farm. Upon
    review, we affirm, albeit on other grounds.
    1
    This case was argued before a panel of the Court that included former Judge Robert
    Simpson. Because Judge Simpson’s service on this Court ended December 31, 2019, this matter
    has been submitted on briefs to Judge Ceisler for consideration as a member of the panel.
    2
    This case was reassigned to the authoring Judge on September 11, 2019.
    Applicant is the owner and operator of the property known as 757
    Valley Road, Tamaqua, Pennsylvania (Property). Board’s Findings of Fact (F.F.) ¶
    A. The Property, which comprises approximately 55.4 acres, lies in the Enhanced
    Agriculture Preservation (EAP) Zoning District. F.F. ¶¶ K & O. Applicant operates
    a chicken farm and egg production facility on the Property, which consists of
    approximately 140,000 laying chickens (layers). Application for Special Exception,
    Attachment at 1, Reproduced Record (R.R.) at 4a; see F.F. ¶¶ M & N(2). In addition
    to producing its own eggs, Applicant’s facilities contain an egg wash system, which
    washes eggs produced on-site as well as eggs brought in by third parties and from
    another one of Applicant’s layer facilities located in Catawissa, Pennsylvania. See
    Notes of Testimony (N.T.) 6/29/16 at 63 & 77, R.R. at 338a & 352a. The eggs are
    washed with water and the resulting “egg wash water” is spread onto a leach field
    on the Property. N.T. 6/1/16 at 49, R.R. at 177a. The facility utilizes two wells for
    water. N.T. 6/1/16 at 73, R.R. at 201a; see N.T. 6/29/16 at 39, R.R. at 314a.
    Applicant seeks to expand its operations. F.F. ¶ N. Specifically, it
    proposes to: (1) remove its existing egg-packing building and replace it with a larger
    egg-processing building; (2) add two additional chicken laying barns to
    accommodate an increase in the number of chickens from the current 140,000 layers
    to a maximum of 468,000 layers;3 (3) transfer manure from the two additional layer
    barns to a new manure storage building; and (4) treat egg wash water with a 26,853-
    3
    We note that Applicant’s application for special exception stated that the proposed
    expansion would increase the number of chickens on the Property from the current 140,000
    maximum to a maximum of 328,000 layers. Zoning Application, Attachment at p. 1, R.R. at 4a.
    However, Applicant’s President Todd Heisler testified that Applicant was proposing increasing
    the number to 460,000. See N.T. 6/29/16 at 38 & 77, R.R. at 313a & 352a. Additionally, the
    Board found the maximum number of layers would be 468,000, F.F. ¶ N(1), and Applicant does
    not dispute this finding.
    2
    gallon wash water treatment facility in accordance with its Nutrient Management
    Plan (NMP) prepared pursuant to the Nutrient Management Act (NMA), 3 Pa. C.S.
    §§501-522. F.F. ¶ N(1-4).
    Section 452.B of the Eastern Schuylkill Planning Region Zoning
    Ordinance (Zoning Ordinance) permits Intensive Agriculture in the EAP Zoning
    District subject to Section 1615 of the Zoning Ordinance.            Board Decision,
    Discussion ¶ B; R.R. at 15a. Section 1615(D) of the Zoning Ordinance provides that
    for lands exceeding 40 acres, any Intensive Agriculture use in excess of 6.0 animal
    equivalent units (AEUs) per acre requires a special exception. Board Decision,
    Discussion ¶ C; R.R. at 15a. Because Applicant’s proposed expansion would
    contain 15.79 AEUs per acre, Applicant applied for a special exception. See F.F. ¶¶
    B & P. Hearings ensued before the Board. Board Decision at p. 14 & F.F. ¶ C; R.R.
    at 9a.
    Applicant presented the testimony of Matthew Hood, a professional
    engineer, and Ted Moncavage (Moncavage), a certified nutrient management
    planner; they testified regarding the proposed expansion, the NMP and Applicant’s
    odor management plan. F.F. ¶ G; see generally N.T. 6/1/16 at 16 -129, R.R. at 144a-
    257a; N.T. 6/29/16 at 5-34, R.R. at 280a-309a. Applicant also presented the
    testimony of its President, Todd Heisler (Heisler). F.F. ¶ F; see generally N.T.
    6/29/16 at 34-89, R.R. at 309a-64a. David Bensinger and Margaret Bensinger
    (together, Objectors), who reside and own property immediately adjacent to the
    Property, appeared with counsel and David Bensinger testified. F.F. ¶ H; see N.T.
    6/29/16 at 121 & 143, R.R. at 396a & 418a; see generally N.T. 6/29/16 at 121-43,
    R.R. at 396a-418a. Objectors also presented the testimony of Serena A. DiMagno
    The Board’s Decision did not include page numbers. Hence, we have supplied the
    4
    necessary pagination.
    3
    (DiMagno) as an expert in the field of environmental regulation and compliance,
    with a sub-specialty in water and wastewater operation and compliance. F.F. ¶ I.
    Several other nearby residents also testified. See F.F. ¶ J; see generally N.T. 6/29/16
    at 97-121, R.R. at 372a-96a.
    Ultimately, the Board denied Applicant’s special exception request.
    Board Decision at p. 14; R.R. at 21a. In so doing, the Board first rejected Applicant’s
    argument that the Board lacked authority to deny Applicant’s special exception
    request on the ground that the Zoning Ordinance was preempted by the NMA. Board
    Decision, Discussion ¶¶ D-I; R.R. at 15a-17a. To that end, the Board stated
    Applicant did not avail itself of the statutory procedure by which to challenge the
    Zoning Ordinance on the ground that it conflicted with the NMA,5 and therefore, it
    declined to usurp the authority of the Attorney General and the court to determine
    whether the Zoning Ordinance is preempted by the law of this Commonwealth. Id.
    ¶ H.
    In addition, the Board found that Applicant did not proffer sufficient
    evidence to permit the Board to determine the proposed water consumption/use
    rates. F.F. ¶ W(2). The Board also found that egg wash water produces foul odors
    and attracts flies and rodents. F.F. ¶ W(9-10). The Board concluded that Applicant’s
    expansion of its proposed use, including the increased severity and impact of foul
    odors, flies and commercial truck traffic, would adversely affect: the agricultural
    and residential character of the community; property values in the community; and
    the health and safety of the residents, workers and visitors of the adjacent properties
    5
    The Board stated, “ACRE [(the Agriculture Code, 3 Pa.C.S. §§ 101-11108)] specifically
    provides that ‘[a]n owner or operator of a normal agricultural operation may request the Attorney
    General to review a local ordinance believed to be an unauthorized local ordinance and to consider
    whether to bring legal action under section 315(a) (relating to right of action).” Board Decision,
    Discussion ¶ G; R.R. at 16a (quoting 3 Pa.C.S. § 314(a)).
    4
    and the general neighborhood. Board Decision, Discussion ¶¶ L-N; R.R. at 18a-19a.
    The Board also concluded that the resulting increased truck traffic would create
    undue congestion and hazards prejudicial to the surrounding neighborhood. Id. ¶ O.
    Additionally, the Board determined that the proposed expansion of the Intensive
    Agricultural use would not conflict with the direction of building development in
    accordance with the comprehensive plan. Id. ¶ P. Finally, and pertinent to our
    review, the Board concluded that services and utilities are available to adequately
    service the proposed use. Id. ¶ Q.
    Applicant appealed to the trial court. Notice of Appeal, R.R. at 22a-
    26a. Without taking additional evidence, the trial court affirmed. See Trial Court
    Order dated 5/22/17 & Opinion, R.R. at 54a & 60a-72a. Applicant then appealed to
    this Court.6
    On appeal,7 Applicant makes three arguments.8 First, it argues that the
    trial court erred in determining that Applicant was not entitled to a deemed approval
    of its application for a special exception. Applicant’s Brief at 11-15. Second,
    Applicant argues the trial court erred in holding that the subject of flies, odors, and
    egg wash were relevant because those issues are governed solely by the NMA. Id.
    at 15-18. Third, Applicant argues that it satisfied all the objective requirements for
    6
    The Board joins in Objectors’ brief. Board’s Letter filed 11/27/17.
    7
    Where, as here, the trial court does not take additional evidence, our scope of review is
    limited to determining whether the Board committed an error of law or “a manifest abuse of
    discretion.” Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 
    462 A.2d 637
    , 639 (Pa. 1983).
    A zoning board abuses its discretion “only if its findings are not supported by substantial
    evidence.” 
    Id. at 640
    .
    8
    For purposes of this opinion, the Court has combined Applicant’s third and fourth issues
    on appeal.
    5
    a special exception set forth in Section 1615 of the Zoning Ordinance. Id. at 18-23.
    Applicant contends it was Objectors’ burden to rebut the presumption that
    Applicant’s proposed use is consistent with the health, safety and welfare of the
    community, and they did not do so. Id. at 23-27.
    I. Deemed Approval
    Section 908(1.2) of the Pennsylvania Municipalities Planning Code9
    (MPC) provides, in pertinent part, “[e]ach subsequent hearing before the [Board] .
    . . shall be held within 45 days of the prior hearing, unless otherwise agreed to by
    the applicant in writing or on the record.” 53 P.S. § 10908(1.2). Section 908(9) of
    the MPC requires that “[w]here the [Board] . . . fails to commence, conduct or
    complete the required hearing as provided in subsection (1.2), the decision shall be
    deemed to have been rendered in favor of the applicant unless the applicant has
    agreed in writing or on the record to an extension of time.” 53 P.S. § 10908(9).
    Applicant agrees that the Board held hearings in this matter on June 1
    and June 29, 2016. Applicant contends that, after the June 29 hearing, Section
    908(1.2) of the MPC required the Board to hold the next hearing within 45 days, i.e.,
    on or before August 13, 2016. Relying on our Supreme Court’s decision in Wistuk
    v. Lower Mt. Bethel Township Zoning Hearing Board, 
    925 A.2d 768
     (Pa. 2007),
    Applicant asserts that the proceeding on July 25, 2016 was a meeting and not a
    hearing. Consequently, Applicant argues that it is entitled to a deemed approval
    pursuant to Section 908(1.2) of the MPC. 53 P.S. § 10908(1.2). We disagree.
    Contrary to Applicant’s assertion, the facts and circumstances
    surrounding the “hearing” in question in Wistuk are not analogous to those found in
    the instant matter. In Wistuk, our Supreme Court held that a meeting, on October
    9
    Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101–11202.
    6
    22, 2003, that was scheduled solely for the purpose of “deliberation and decision”
    was not a “hearing” within the meaning of Section 908(1.2), as the parties did not
    have an “‘opportunity to respond and present evidence and argument and cross-
    examine adverse witnesses.’” Wistuk, 925 A.2d at 775 (quoting Section 908(5) of
    the MPC, 53 P.S. § 10908(5)).
    In concluding that the proceeding at issue in Wistuk was not a hearing,
    our Supreme Court relied on the following facts and circumstances. The Supreme
    Court noted that the board’s solicitor all but stated at the prior hearing conducted on
    September 30, 2003 that the hearings on the matter were concluded, stating, “[w]e’re
    going to close the record. Everybody is done. Good. Close the record.” Wistuk, 925
    A.2d at 769. The solicitor also stated that counsel for the parties could submit written
    legal arguments to him in lieu of oral argument and explained that the briefs would
    be circulated among board members and discussed on October 22, 2003, at which
    time the board would also reach and announce a decision. Id. The solicitor made
    clear that no new testimony or evidence of any kind would be taken at the October
    22, 2003 meeting. See id. (quoting solicitor’s statement, “when the [b]oard resumes
    to deliberate, it’s not going to be for argument or comment for anyone; it will be for
    discussion and deliberation and voting[]”). The board solicitor also told participants
    that there was no need to be present at the later scheduled October 22 meeting, and
    counsel, in fact, were not present. Id. at 769-70 (quoting solicitor’s statement, “[s]o
    for those of you who can’t come back, you can have some assurance that there’s
    nothing going to change about the hearing. It’s going to be deliberation and voting.
    The record is closed.”). Consistent with this, when the board reconvened on October
    22, 2003, prior to the deliberations, the board solicitor reiterated that no one was to
    7
    speak to the board at any time, reminding those present that he had assured counsel
    at the last hearing that there would be no further testimony or argument. Id. at 770.
    In analyzing whether the October 22, 2003 proceeding was a “hearing,”
    the Supreme Court noted that the MPC defines the term “hearing” very broadly, and
    that a zoning hearing board must conduct hearings in accordance with requirements,
    to include that “[t]he parties shall . . . be afforded the opportunity to respond and
    present evidence and argument and cross-examine adverse witnesses on all relevant
    issues.” Wistuk, 925 A.2d at 775. The Supreme Court noted that “none of these
    features was attendant to the October 22 meeting.”10 Id. Accordingly, the Supreme
    Court ruled that the September 30, 2003 meeting was “the last hearing” and that the
    October 22, 2003 meeting was not a hearing. See id.
    In contrast, the July 25, 2016 proceeding at issue in the case sub judice
    was not scheduled solely for the purpose of “deliberation and decision.” Rather, at
    the preceding hearing on June 29, 2016, the evidentiary record was left open and the
    hearing was continued for the purpose of taking additional testimony at the July 25,
    2016 hearing. This is apparent from the transcript of the June 29, 2016 proceeding.
    The following exchange occurred at the beginning of Objectors’ presentation of their
    case at the June 29, 2016 proceeding:
    [Objectors’ Counsel]: As I advised counsel, we did
    have somewhat of a medical emergency with my expert
    10
    In Wistuk, the Supreme Court agreed with Judge Friedman’s dissenting opinion in Wistuk
    v. Lower Mt. Bethel Township Zoning Hearing Board, 
    887 A.2d 343
     (Pa. Cmwlth. 2005)
    (Friedman, J., dissenting), reversed, 
    925 A.2d 768
    , 775 (Pa. 2007), that the circumstances were
    similar to those presented in South Lebanon Township Zoning Hearing Board v. Weber, 
    592 A.2d 127
     (Pa. Cmwlth. 1991) (holding that a hearing where the zoning board said it would deliberate
    and hold a subsequent meeting to announce its deliberations constituted the final hearing and that
    the subsequent meeting to announce deliberations did not qualify as a hearing), and Quality Food
    Markets, Inc. v. Zoning Hearing Board, 
    413 A.2d 1168
     (Pa. Cmwlth. 1980) (holding that a meeting
    for what the zoning board referred to as “deliberation and discussion” among the members was
    not a hearing).
    8
    witness who was diagnosed yesterday with shingles and is
    contagious and is not able to be here this evening.
    So I would ask that we be afforded an opportunity
    to call Ms. Serena DiMagno at a later date, which I
    understand that we will probably be taking - - ask that we
    take some witnesses out of order for a little bit due to her
    illness, which precluded her from being here today.
    [Board’s Solicitor]: Yes. I don’t think there would
    be any problem with that. We will coordinate the next
    meeting date.
    N.T. 6/29/16 at 90-91, R.R. at 365a-66a. Later during the meeting, the exchange
    continued:
    [Board’s Solicitor]: All right. Any other questions?
    Anything else for tonight?
    [Objectors’ Counsel]: Not for tonight. No. I have
    no further testimony to present tonight. Again, what we
    had talked about, after I finish with my witness, I will
    move for my exhibits after I complete here (sic)
    examination.
    [Board’s Solicitor]: We’ll go back on the record.
    All right. The meeting will be adjourned then we’ll have
    our next meeting, the final meeting on Monday, July 25th
    at 7 p.m. Anyone that wants to be here just take note of
    that. This will not be advertised. This is your legal notice
    of the next meeting. Hopefully, we’ll have time to
    deliberate and make a decision.
    N.T. 6/29/16 at 143, R.R. at 418a.
    Unlike the record in Wistuk, the record in this matter does not indicate
    that the evidentiary record was closed at the June 29, 2016 meeting. Rather, it is
    clear that the evidentiary record was left open and the intent of continuing the June
    9
    29, 2016 hearing to July 25, 2016 was to hear the testimony of the expert witness
    who could not be present at the June 29, 2016 hearing. There was no disagreement
    among the parties at the June 29 hearing that the evidentiary record would remain
    open and that further testimony would be taken at the July 25 proceeding. In fact,
    the Board’s chairman even stated that he hoped that “we’ll have time to deliberate
    and make a decision.” N.T. 6/29/16 at 143, R.R. at 418a. If the purpose of the July
    25, 2016 proceeding was only for deliberation and vote, as in Wistuk, the Board’s
    chairman would not need to “hope” for time to deliberate and vote.
    On July 25, the proceeding was convened, a stenographer was present
    taking down the record, and a continuance request was made on the record so that
    testimony could be postponed from the July 25 date and heard, instead, at a
    continued meeting on August 24 due to the continued illness of the planned witness.
    Even the Board’s solicitor believed the record was not closed at the prior June 29
    hearing and that the July 25 proceeding was a hearing. This is confirmed by the
    exchange on the record during the July 25 proceeding:
    [Board’s Solicitor]: Okay. We’re reconvening
    again. This is our third hearing. I believe. A continuation
    of the last proceeding which adjourned on June 29[]. . . .
    And I believe that there is just going to be a couple items
    marked of record . . . .
    [Objectors’ Counsel]: Good evening, gentleman.
    It’s still my case. When we were here back on June 29[],
    I had advised the [Board] that unfortunately our key
    witness[,] Ms. DiMagno[,] was diagnosed, I believe, the
    day before with shingles. And we remained hopeful that
    she would be here, present this evening to offer testimony.
    And we had deferred today - - we had ended last
    month, late June, slightly early after we presented, I’ll say,
    some lay witness testimony.
    10
    Mr. Solicitor, I’d ask to mark two exhibits. I don’t
    know where we left off. And so I’d just ask that they be
    marked sequentially. The next exhibit would be the letter
    I wrote to yourself on July 13, 2016. I faxed to both you
    and [Applicant’s Counsel], enclosing a copy of Ms.
    DiMagno’s physician’s note indicating that - - it’s a note
    from Hershey Medical Center that she is out of work for a
    total of five weeks, an additional four weeks. And that’s
    dated July 13[]. And that’s part of the facsimile that was
    sent to yourself and [Applicant’s Counsel].
    ...
    And on the next exhibit, next number, is Ms.
    DiMagno’s eight or nine page résumé setting forth her
    qualifications.
    ...
    But officially[,] I would ask again to continue this
    hearing to afford my client[s] an opportunity to present
    their expert testimony in what we believe is an important
    case. . . .
    N.T. 7/25/16 at 4-7, R.R. at 438a-41a (emphasis added). Additionally, during the
    July 25, 2016 meeting, Objectors’ counsel made an offer of proof on the record,
    stating that, relative to the expert’s testimony, Objectors planned:
    to offer testimony regarding the waste management. To
    offer testimony regarding the plant. To offer testimony
    regarding the egg wash plant process. To offer testimony
    regarding both, I believe, are lay witnesses that were
    presented by the [A]pplicant and to refute that testimony.
    N.T. 7/25/16 at 8, R.R. at 442a.
    This Court has recognized that a hearing is more than just a proceeding
    in which to take testimony or other substantive evidence. In Gaster v. Township of
    Nether Providence, 
    556 A.2d 947
     (Pa. Cmwlth. 1989), the applicants submitted an
    application for approval of a mobile home park on their property. 
    Id. at 948
    . The
    zoning board held 14 hearings on the matter. 
    Id.
     At a hearing held on June 8, 1987,
    11
    testimony was completed and both parties agreed that the record would remain open
    until July 13, 1987 for the zoning board to question the attorneys. 
    Id.
     On July 13,
    1987, oral arguments were heard. 
    Id.
     The board denied the application on August
    10, 1987, with a written decision issued on August 11, 1987. 
    Id.
     Subsequently, the
    applicants filed a complaint in mandamus to enforce a deemed approval pursuant to
    Section 908(9) of the MPC, 53 P.S. § 10908(9). Gaster, 
    556 A.2d at 947
    . The
    applicants argued that the last hearing date was June 8, 1987, when testimony was
    last received, and not July 13, 1987, when the zoning board heard oral arguments.
    
    Id. at 949
    . This Court affirmed the holding of the common pleas court that the term
    “hearing” includes specially scheduled sessions for argument by counsel. 
    Id.
     at 949-
    50. In doing so, we cited Section 908(5) of the MPC, 53 P.S. § 10908(5), which
    provides: “The parties shall have the right to be represented by counsel and shall be
    afforded the opportunity to respond and present evidence and argument and cross-
    examine adverse witnesses on all relevant issues.”               Gaster, 
    556 A.2d at 949
    (emphasis omitted). Accordingly, we agreed that the last hearing date in the context
    of Section 908(9) was July 13, 1987. 
    Id. at 950
    .
    Similarly, in Hogan, Lepore & Hogan v. Pequea Township Zoning
    Board, 
    638 A.2d 464
     (Pa. Cmwlth.), appeal denied, 
    647 A.2d 905
     (Pa. 1994),11 this
    Court considered whether a deemed approval occurred when the zoning board issued
    its decision within 45 days after hearing oral argument, but more than 45 days after
    the last evidentiary hearing. In that case, the applicant applied for a special exception
    to use its property as a quarry. Id. at 466. The zoning board held 26 evidentiary
    11
    We recognize that in Wistuk, our Supreme Court disapproved of this Court’s decision in
    Hogan. However, such disapproval was limited to our holding that a party’s acquiescence in a
    board’s meeting to entertain written briefs, deliberate, and render a decision waived or estopped
    that party from asserting statutory entitlement to a deemed approval of requests. See Wistuk, 925
    A.2d at 774. Our opinion does not rely on Hogan for this proposition.
    12
    hearings between January 30, 1990 and July 23, 1991. Id. at 467. At the July 23,
    1991 hearing, the zoning board consulted with the parties and, with no objections,
    established dates for additional hearings if necessary. Id. at 467. At the end of the
    hearing on July 23, 1991, the zoning board closed the record and indicated that the
    parties would be given an opportunity to make oral arguments on September 19,
    1991, the next hearing date selected by the parties. Id. The zoning board held oral
    arguments as scheduled and later rendered a written decision denying the special
    exception on October 28, 1991. Id. The applicant asserted that it was entitled to a
    deemed approval under Section 908(9) of the MPC, arguing that the date of the last
    board hearing was July 23, 1991. The applicant based its argument on the fact that
    the zoning board closed the record of testimony on that date, and further argued that
    the September 19, 1991 hearing was unnecessary and that the zoning board could
    not unilaterally reconvene on that date and thereby reset the 45-day period. Id. at
    467-68. Our Court disagreed. See id. at 469. We concluded that, given the extensive
    record, the number of prior hearings, and the complexity of the issues, the zoning
    board did not abuse its discretion in fixing a separate hearing solely for the purpose
    of considering that parties’ legal arguments and counsels’ summations. Id. at 468.
    We stated that Section 908(5) of the MPC specifically contemplates parties making
    oral argument at hearings before zoning hearing boards, and, despite the zoning
    board’s earlier closing of the record, we relied on Gaster’s holding that “oral
    argument constitutes a hearing for Section 908(9) purposes.” Hogan, 638 A.2d at
    468.
    Turning back to Wistuk, now retired Judge Friedman, in her dissenting
    opinion in this Court’s decision in that case, with which the Supreme Court agreed,
    distinguished the facts in Wistuk from those in Gaster and Hogan. In concluding
    13
    that the Wistuk board’s October 22, 2003 proceeding was not a hearing, Judge
    Friedman noted that the record in Wistuk, unlike the records in Hogan and Gaster,
    “establishe[d] that the [b]oard met on October 22, 2003, solely for the purpose of
    deliberation and voting.” Wistuk, 
    887 A.2d at 350
     (Friedman, J., dissenting)
    (emphasis added). The facts distinguishing Hogan and Gaster are not present in this
    matter. Consequently, this Court’s analysis should be guided by Hogan and Gaster
    rather than Wistuk.
    Further, we disagree with Applicant’s assertion that the July 25 meeting
    was solely to deliberate on Objectors’ continuance request that was submitted prior
    to the meeting. See Applicant’s Brief at 14. The evidentiary hearing of July 25 was
    scheduled at the June 29 meeting. N.T. 6/29/16 at 143, R.R. at 418a. On July 13,
    Objectors’ counsel sent a letter to the Board notifying the Board that Objectors’
    expert witness would not be available on July 25 due to medical reasons, and
    requested a continuance. See N.T. 7/25/16 at 5-6, R.R. at 439a-40a; Objectors’ Ex.
    3, R.R. at 773a-74a.
    We acknowledge our unreported decision of Q & D, Inc. v. Board of
    Commissioners of Township of Haverford (Pa. Cmwlth., No. 1207 C.D. 2006, filed
    April 16, 2009), which is of persuasive value only. See Commonwealth Court
    Internal Operating Procedures § 414(a), 
    210 Pa. Code § 69.414
    (a). Moreover, that
    case is distinguishable. In Q & D, an examination of the record revealed that the
    zoning board was polled in advance and the consensus was that the matter would be
    continued on January 15, 2004, the scheduled hearing date, to the next available date,
    and the parties were told ahead of time that the continuance would be granted, as
    neither parties’ counsel appeared at the hearing, nor did counsel representing the
    township. 
    Id.,
     slip op. at 3-4. Here, unlike Q & D, no decision was made prior to
    14
    the July 25 meeting that the hearing would be continued. Instead, all parties and
    counsel appeared as scheduled on July 25, knowing that they had to be prepared to
    proceed. See N.T. 7/25/16 at 1-23, R.R. at 435a-57a. The record was opened,
    counsel for Objectors began by announcing that it was the continuation of his case,
    and he later made the request for a continuance. N.T. 7/25/16 at 5 & 7, R.R. at 439a
    & 441a. Additionally, Objectors’ Counsel offered two exhibits: (i) his letter of July
    13 requesting the continuance and enclosing a medical note from the expert’s
    physician, also dated July 13, indicating the expert would be disabled for five weeks;
    and (ii) the expert’s résumé. N.T. 7/25/16 at 5-8, R.R. at 439a-42a. Notably, these
    two exhibits were introduced without objection from opposing counsel.            N.T.
    7/25/16 at 8, R.R. at 442a. Under the MPC, a hearing occurs where there is an
    opportunity to respond and present evidence and argument. See Section 908(5) of
    the MPC, 53 P.S. § 10908(5); Gaster, 
    556 A.2d at 949-50
     (noting that Section 908(9)
    of MPC provides parties with opportunity to present evidence and argument and
    holding that Section 908(9) of MPC does not limit the term “hearing” to proceedings
    where board receives substantive evidence); see also Hogan, 638 A.2d at 468
    (discussing holding in Gaster). Thus, this proceeding could not have been simply a
    meeting but, rather, was a hearing. See Section 908(5) of the MPC, 53 P.S. §
    10908(5) (stating that requirements for a hearing include the opportunity to present
    evidence).
    Further, we note that considerations as to the amount of evidence
    offered, whether the evidence resolves the ultimate issue in the case, and the length
    of the time of the proceeding are not dispositive of whether an event constitutes a
    hearing. Moreover, even if these exhibits do not resolve the ultimate issue in the
    case, the exhibits are relevant. An expert’s résumé detailing the expert’s credentials
    15
    would certainly be relevant to the weight the Board would afford that testimony. Cf.
    Joseph v. N. Whitehall Twp. Bd. of Supervisors, 
    16 A.3d 1209
    , 1218-19 (Pa. Cmwlth.
    2011) (stating, “[e]vidence is relevant if it logically tends to establish a material fact,
    makes a fact at issue more or less probable, or supports a reasonable inference or
    presumption regarding the existence of a material fact[]”); Crystal Forest Assocs.,
    LP v. Buckingham Twp. Supervisors, 
    872 A.2d 206
     (Pa. Cmwlth. 2005) (relying on
    expert’s testimony and his curriculum vitae to determine that witness was an expert
    in area of real estate development and financing). The Board has wide latitude in
    determining what evidence to admit as relevant. See Joseph, 16 A.3d at 1219 (stating
    that administrative agencies have broad discretion to admit or exclude evidence).
    Nonetheless, Applicant argues that the trial court erred as a matter of
    law by accepting the Board’s decision to grant a continuance over Applicant’s
    objection.    Applicant’s Brief at 14.       In response to Applicant’s opposition,
    Objectors’ Counsel noted on the record that the July 25 date was originally selected
    to try to “fit in the final hearing before the planning commission meeting” that was
    originally scheduled for the end of the same week (a meeting that was later
    postponed). N.T. 7/25/16 at 15-16, R.R. at 449a-50a. At the July 25, 2016
    proceeding, a vote was taken of the Board and the continuance request was granted.
    N.T. 7/25/16 at 20-21, R.R. at 454a-55a. The Board very deliberately chose a date
    within 45 days of the July 25 date, August 24, 2016, and noted that the August 24
    hearing would “close the record[.]” See N.T. 7/25/16 at 22, R.R. at 456a.
    The fact that Applicant’s Counsel did not agree with the grant of the
    continuance and preserved his objection for later review does not mean that the
    continuance should not have been granted or that Applicant is entitled to a deemed
    approval. It simply means that Applicant has not waived his ability to raise an
    16
    argument that he is entitled to a deemed approval. See Wistuk, 925 A.2d at 774
    (holding applicant’s acquiescence to board’s meeting for deliberation and decision
    did not waive or estop applicant from claiming entitlement to deemed approval).
    While recognizing the time constraints within which a zoning board
    must reschedule hearings, the decision itself to continue the hearing was within the
    discretion of the Board. See Bass v. Zoning Bd. of Adjustment of City of Phila. (Pa.
    Cmwlth., No. 2179 C.D. 2013, filed Aug. 12, 2014), slip op. at 3 (stating it is within
    tribunal’s discretion whether to grant continuance request); cf. Hogan, 638 A.2d at
    468 (finding board did not abuse its discretion in fixing separate hearing solely for
    purpose of considering legal argument). There is nothing in the record to support
    any abuse of discretion in granting the continuance. After granting the continuance,
    the Board’s Solicitor explained that the Board was concerned about due process and
    that the Board wanted to hear fully both sides of the case. N.T. 7/25/16 at 21, R.R.
    at 455a.
    Therefore, for the foregoing reasons, we find no error in the trial court’s
    determination that Applicant was not entitled to a deemed approval.12
    12
    The Court cautions that our determination regarding the lack of a deemed approval in
    this matter is strictly limited to the specific and unique facts herein. Upon a close review of these
    facts, coupled with the relevant statutory language set forth in Section 908 of the MPC, the Court
    concludes that the July 29 proceeding herein constitutes a “hearing” by the narrowest of margins.
    While the facts of this particular case are distinguishable from those presented in Wistuk, this
    opinion upholds the statutory requirements as stated in Wistuk, specifically, that “[e]ach
    subsequent hearing before the board . . . shall be held within 45 days of the prior hearing, unless
    otherwise agreed to by the applicant in writing or on the record,” and a deemed approval will result
    “where the board fails to render the decision” within 45 days after the last hearing. See 53 P.S. §
    10908 (1.2), (9). Furthermore, this Court does not condone gamesmanship, and while we do not
    believe that the same occurred herein, we take this opportunity to discourage and caution against
    such actions.
    17
    NMA and Special Exception
    “Generally speaking, ‘[a] special exception is not an exception to a
    zoning ordinance, but rather a use which is expressly permitted, absent a showing of
    a detrimental effect on the community.’” Tower Access Grp., LLC v. S. Union Twp.
    Zoning Hearing Bd., 
    192 A.3d 291
    , 300 (Pa. Cmwlth. 2018) (quoting Manor
    Healthcare Corp. v. Lower Moreland Twp. Zoning Hearing Bd., 
    590 A.2d 65
    , 70
    (Pa. Cmwlth. 1991)). “The important characteristic of a special exception is that it
    is a conditionally permitted use, legislatively allowed if the standards are met.” Bray
    v. Zoning Bd. of Adjustment, 
    410 A.2d 909
    , 911 (Pa. Cmwlth. 1980). To satisfy its
    burden for a special exception, an applicant must establish that the proposed use
    meets “the specific objective criteria of the [z]oning [o]rdinance.” JoJo Oil Co., Inc.
    v. Dingman Twp. Zoning Hearing Bd., 
    77 A.3d 679
    , 687 (Pa. Cmwlth. 2013).
    “These definite criteria are in contrast to the general, non-specific or non-objective
    requirements such as health and safety.” 
    Id. at 688
    . Once the applicant establishes
    compliance with the specific criteria, it is presumed that the use is consistent with
    the promotion of the public health, safety and welfare. Blancett-Maddock v. City of
    Pittsburgh Zoning Bd. of Adjustment, 
    6 A.3d 595
    , 600 (Pa. Cmwlth. 2010). The
    burden then shifts to the objectors to prove “to a high degree of probability that the
    impact from the proposed use will substantially affect the health, safety and welfare
    of the community to a greater extent than would be expected normally from that type
    of use.” 
    Id.
    Applicable to Applicant’s special exception application is Section 1615
    of the Zoning Ordinance, which sets forth “Intensive Agricultural Standards” and
    18
    applies to an intensive agricultural use.13 See Zoning Ordinance § 1615, R.R. at
    119a-22a. Also applicable is Section 2002(C) of the Zoning Ordinance, entitled
    “Special Exceptions,” which governs all special exceptions. See Zoning Ordinance
    § 2002(C), R.R. at 128a.
    Applicant argues that the Board abused its discretion by establishing
    additional requirements that are not present in the Zoning Ordinance. Applicant
    asserts the Board improperly applied criteria preempted by the NMA, in particular,
    standards regarding flies, odor, and the application and runoff of egg wash water.
    Applicant’s Brief at 16. Applicant argues the Board referenced the impact of runoff
    of egg wash water and its effects on nearby water sources, the odors associated with
    egg wash water, and the fact that egg wash water attracts flies and rodents. Applicant
    asserts as soon as egg wash water is applied to land, it is a nutrient governed by the
    NMA. Applicant’s Brief at 17. Therefore, the management of egg wash water,
    including its odor and runoff impacts, is governed by the NMA. Id. Applicant
    contends that, regardless of the Board’s concerns about these matters, it satisfied all
    possible requirements related to egg wash water by complying with the NMA, and
    the Board’s efforts to impose additional standards on Applicant on these issues was
    a clear error of law.
    13
    Section 1615’s criteria applicable to Applicant’s proposed used are setback
    requirements, an approved nutrient management plan, a stormwater management plan, an
    approved land development plan, an approved erosion and sedimentation plan, an approved
    conservation plan and a landscaping plan, as well as requirements related to the management of
    solid and liquid wastes, fly and odor abatement and animal storage facilities. Zoning Ordinance §
    1615(E), (K)-(U), R.R. at 120a-22a; see Applicant’s Brief at 20-23. Subsections (C) and (D)
    establish the threshold of AEUs that require a special exception, and Applicant does not dispute it
    needs a special exception for its proposed use. See Zoning Ordinance § 1615(C)-(D), R.R. at 120a;
    Applicant’s Brief at 20 n.3. Subsections (A) and (B) are general background. See Zoning
    Ordinance § 1615(A)-(B), R.R. at 119a-20a; See Applicant’s Brief at 20 n.3.
    19
    Applicant also raises the related contention that it was entitled to a
    special exception because it satisfied (or will, through the land development process,
    satisfy) each of the special exception criteria set forth in Section 1615 of the
    Township’s Zoning Ordinance related to “Intensive Agricultural Standards.”
    Applicant’s Brief at 20-23. Applicant argues that once it satisfied each of the
    objective standards for a special exception in the Zoning Ordinance, the burden
    shifted to Objectors to rebut the presumption that the proposed use is consistent with
    the health, safety and welfare of the community. See Applicant’s Brief at 18 & 23.
    Applicant argues that Objectors failed to satisfy their burden relative to the
    subjective inquiry related to health, safety and welfare (which are set forth in Section
    2002(C)) because (i) their objections were speculative and, therefore, did not show
    a high degree of probability that the proposed use will substantially harm the health,
    safety and welfare of the surrounding area; and (ii) Objectors failed to show the
    impact was greater than any other similar permitted uses. See Applicant’s Brief at
    23-24.
    Section 519 of the NMA titled, “Preemption of local ordinances,”
    states, in its entirety:
    (a) General.—This chapter and its provisions are of
    Statewide concern and occupy the whole field of
    regulation regarding nutrient management and odor
    management, to the exclusion of all local regulations.
    (b) Nutrient management.—No ordinance or regulation
    of any political subdivision … may prohibit or in any way
    regulate practices related to the storage, handling or land
    application of animal manure or nutrients or to the
    construction, location or operation of facilities used for
    storage of animal manure or nutrients or practices
    otherwise regulated by this chapter if the municipal
    20
    ordinance or regulation is in conflict with this chapter and
    the regulations or guidelines promulgated under it.
    (c) Odor management.—No ordinance or regulation of a
    political subdivision … may regulate the management of
    odors generated from animal housing or manure
    management facilities regulated by this chapter if the
    municipal ordinance or regulation is in conflict with this
    chapter and the regulations or guidelines promulgated
    under it.
    (d) Stricter requirements.—Nothing in this chapter shall
    prevent a political subdivision … from adopting and
    enforcing ordinances or regulations which are consistent
    with and no more stringent than the requirements of this
    chapter and the regulations or guidelines promulgated
    under this chapter. No penalty shall be assessed under any
    such local ordinance or regulation under this subsection
    for any violation for which a penalty has been assessed
    under this chapter.
    3 Pa.C.S. § 519. Recently, our Supreme Court addressed the preemptive effect of
    Section 519 of the NMA and held, “viewed in its entirety, Section 519 of the NMA
    reveals the Legislature’s intent to prohibit local regulation of nutrient management
    only to the extent that it is more stringent than, inconsistent with, or in conflict with
    the [NMA] or its regulations.” Berner v. Montour Twp. Zoning Hearing Bd., 
    217 A.3d 238
    , 248 (Pa. 2019) (Berner II).
    Here, Applicant does not identify any specific conflict between the
    NMA or its regulations and the Zoning Ordinance. Further, we note that Applicant
    states in its reply brief that the Board “was never asked to rule on whether its
    ordinance was preempted.” Applicant’s Reply Brief at 3. Rather, Applicant’s
    argument is that the Board imposed standards, in particular, standards regarding
    flies, odor, and the application and runoff of egg wash water, that were preempted
    21
    by the NMA. Applicant’s Brief at 15-16. However, we need not reach this argument
    because we conclude that Applicant failed to meet an objective criterion set forth in
    the Zoning Ordinance, unrelated to flies, odor, and the application and runoff of egg
    wash water, and, therefore, failed to establish, in the first instance, that it was entitled
    to a special exception for the proposed use.
    Initially, we recognize that in Berner II, our Supreme Court held that a
    zoning provision for a special exception for hog raising that required the applicant
    to show that the use would not have adverse impacts was preempted by the NMA.
    Berner II, 217 A.3d at 248-49. However, that is not what we have here. In Berner
    II, regardless of which party had the burden of proof, the provision allowed the
    zoning hearing board to determine the adverse impact or the effect of the use, which
    the Supreme Court held was preempted by the NMA. In other words, the NMA
    preempts any adverse effect from the use. This is different than the question of
    whether one has the right to have the use in the first instance, particularly, where, as
    will be explained here, the criterion at issue relates to the adequacy of services and
    utilities, a subject not within the purview of the NMA.
    We are mindful that a use by special exception is legislatively allowed
    if the standards are met. Bray, 410 A.2d at 911. This Court has explained, “the
    applicant has both the initial evidence presentation duty and the persuasion burden
    to show that the proposed use complies with the specific requirements in the zoning
    ordinance which govern the grant of a special exception. Bray, 410 A.2d at 912-
    913. In other words, the standards are, in effect, prerequisites to a permitted use,
    and the use is not permitted unless the applicant first meets all of the specific,
    objective requirements set forth in the zoning ordinance for a special exception. See
    id. at 911. The question of whether an ordinance provision regarding a special
    22
    exception is an “objective” or “subjective” requirement involves statutory
    interpretation. Siya Real Estate LLC v. Allentown City Zoning Hearing Bd., 
    210 A.3d 1152
    , 1156 (Pa. Cmwlth. 2019). As such, it is “‘a question of law, for which
    our standard of review is de novo, and our scope is plenary.’” Id. at 1156-57 (quoting
    Hoffman Mining Co., Inc. v. Zoning Hearing Bd. of Adams Twp., Cambria Cty., 
    32 A.3d 587
    , 592 (Pa. 2011)).
    The parties do not dispute that Section 1615(D) of the Zoning
    Ordinance requires a special exception for Applicant’s Intensive Agricultural Use.
    See Zoning Ordinance § 1615(D). With respect to Applicant’s arguments that it
    presented sufficient evidence that it satisfied (or will, through the land development
    process, satisfy) Section 1615 of the Zoning Ordinance, we note that the Board did
    not deny Applicant’s special exception application on the grounds that Applicant did
    not satisfy Section 1615’s criteria.    Rather, the Board focused on the special
    exception criteria set forth in Section 2002(C) of the Zoning Ordinance, which are
    applicable to all special exceptions.
    Section 2002(C) states:
    The granting of a special exception when specifically
    authorized by the terms of this [Zoning] Ordinance shall
    be subject to the following standards and criteria:
    1. Such use shall be one which is specifically authorized
    as a Special Exception Use in the zoning district wherein
    the applicant seeks a special exception.
    2. Such Special Exception shall only be granted subject to
    any applicable condition and safeguards as required by
    this [Zoning] Ordinance.
    3. Such use shall not adversely affect the character of the
    zoning district, nor the conservation of property values,
    23
    nor the health and safety or [sic] residents or workers an
    [sic] adjacent properties and in the general neighborhood.
    4. Such use shall be of such size and so located and laid
    out in relation to its access streets that vehicular and
    pedestrian traffic to and from such use will not create
    undue congestion or hazards prejudicial to the general
    neighborhood.
    5. Such use shall not conflict with the direction of building
    development in accordance with and [sic] Comprehensive
    Plan or portion thereof which has been adopted by the
    Municipal Governing Body; and
    6. Services and utilities are available to adequately service
    the proposed use.
    Section 2002(C)(1)-(6) of the Zoning Ordinance.
    Relevant here is the Zoning Ordinance’s special exception requirement
    that “[s]ervices and utilities are available to adequately service the proposed use.”
    Zoning Ordinance § 2002(C)(6). We recognize the Board concluded that services
    and utilities are available to adequately service the proposed expansion of
    Applicant’s Intensive Agricultural use.        Board’s Decision, Discussion ¶ Q.
    However, the Board made no findings to support this conclusion. Specifically, the
    Board found:
    1. [Applicant’s] two (2) well water reports,
    concerning two (2) wells which were drilled within
    a period of approximately two (2) days of each other
    on the [Property], reflect a thirty (30) minute yield
    test on each well, and not forty-eight (48) hour yield
    tests, as is the industry standard for commercial
    applications;
    24
    2. [Applicant] did not proffer sufficient evidence
    through documentation, testimony or otherwise to
    permit the [Board] to determine the proposed water
    consumption and/or water use rates;
    3. Specifically, [Applicant] failed to account for
    additional water consumption and/or water use as a
    result of wash water to be applied to eggs delivered
    from locations other than the farm located on or in
    the immediate vicinity of the [Property];
    4. [Applicant] did not proffer sufficient evidence
    through documentation, testimony or otherwise to
    permit the [Board] to determine whether the two (2)
    aforesaid wells draw from the same aquifer[.]
    F.F. ¶ W(1-4). Contrary to the Board’s ultimate conclusion, these findings support
    only the conclusion that, with respect to water, Applicant did not present sufficient
    evidence for the Board to make a determination as to the adequacy of the services
    and utilities as they relate to water.
    Initially, we note the NMA has requirements regarding addressing
    practices to prevent surface water and groundwater pollution, as well as stormwater
    run-off. See 
    25 Pa. Code § 83.311
     (regarding manure management practices to
    prevent surface water or groundwater pollution); 
    25 Pa. Code § 83.321
     (regarding
    stormwater control); Office of Att’y Gen. ex rel. Corbett v. E. Brunswick Twp., 
    980 A.2d 720
     (Pa. Cmwlth. 2009) (noting NMA addresses effect of nutrient application
    on surface and ground water quality, which necessarily referred to post-application
    soil and water quality). There are also requirements related to proximity to (i.e.,
    setbacks from) bodies of water. See 
    25 Pa. Code § 83.351
    (a)(2). However, there
    are no requirements related to the adequacy of the water servicing the proposed use.
    Nor do the Board’s findings relevant to our analysis relate to an adverse impact. As
    25
    such, the Zoning Ordinance’s requirement regarding adequacy of services of utilities
    is not in conflict with the NMA, and, applying our Supreme Court’s holding in
    Berner II, we do not deem it to be preempted by the NMA.14
    We turn back, then, to the Board’s findings and whether they support
    the Board’s conclusion regarding the adequacy of the services and utilities as they
    relate to water. Although Applicant argues it satisfied its burden and, therefore, the
    burden shifted to Objectors, we disagree. Establishing the availability of adequate
    services and utilities are generally regarded as specific, objective requirements. See,
    e.g., Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg Twp., 
    918 A.2d 181
    , 187-88 (Pa. Cmwlth. 2007) (stating applicant had to meet standard to
    establish that there were adequate services and utilities, in particular, public sewage
    capacity, for permitted use). This is especially so where, as here, the knowledge of
    the specific details related to the use requirements are within the realm of the
    applicant. See Berner v. Montour Twp. Zoning Hearing Bd., 
    176 A.3d 1058
    , 1072-
    14
    We acknowledge what is commonly known as the Water Resources Planning Act
    (WRPA), 27 Pa.C.S. §§ 3101 – 3136, although not addressed by the parties. The WRPA contains
    a preemption provision that provides, “no political subdivision shall have any power to allocate
    water resources or to regulate the location, amount, timing, terms or conditions of any water
    withdrawal by any person.” 27 Pa.C.S. § 3136(b). Subsection (c) further provides, in part:
    “Nothing in subsection (b) shall affect the power of any municipality to adopt and enforce
    ordinances pursuant to 35 Pa.C.S. Pt. V (relating to emergency management services) or regulate
    the use of land pursuant to the [MPC] or other laws.” 27 Pa.C.S. § 3136(c). The Zoning Ordinance
    provision at issue here does not purport to do any of these prohibited actions, i.e., it does not
    allocate water resources or regulate water withdrawal. See Office of Att’y Gen. ex rel. Corbett v.
    Locust Twp., 
    49 A.3d 502
    , 513 (Pa. Cmwlth. 2012) (stating that in order to determine whether a
    local ordinance is preempted by the WRPA, the court must first determine whether the ordinance
    attempts to allocate water resources or regulate water withdrawal, and if it does, then the
    ordinance’s provision must fall within a permissible exception or it is preempted). Rather, the
    Zoning Ordinance provision here simply requires the applicant to address the adequacy of water
    services. Cf. Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg Twp., 
    918 A.2d 181
    , 188-89 (Pa. Cmwlth. 2007) (ruling that determination as to whether there was adequate public
    sewage capacity for permitted use was not an attempt to impose requirement that applicant allocate
    available sewer capacity, although case did not involve WRPA).
    26
    73 (Pa. Cmwlth. 2018), rev’d on other grounds, Berner II (finding required
    submissions to be specific requirement where, in addition to other reasons, items
    would be in primary control of applicant). As such, the burden for this element was
    on Applicant. See Bray, 410 A.2d at 911.
    We recognize that this Court has stated that zoning regulates the use of
    land, not the particulars of development and construction, and that, therefore,
    typically an application for a special exception need not address the issues of
    adequate sewage capacity, storm water management or water supply requirements.
    Schatz v. New Britain Twp. Zoning Hearing Bd. of Adjustment, 
    596 A.2d 294
     (Pa.
    Cmwlth. 1991). However, where a zoning ordinance provision requires that the
    adequacy of such items be addressed, a special exception can be denied if the
    applicant fails to establish that it can meet the requirements. See Greth, 
    918 A.2d at 186
     (holding, “where the provision of sewage capacity is specifically required by
    the zoning ordinance, a special exception can be denied if the applicant fails to
    establish that it can meet the sewage treatment requirements”); E. Manchester Twp.
    Zoning Hearing Bd. v. Dallmeyer, 
    609 A.2d 604
    , 608 (Pa. Cmwlth. 1992) (holding
    that zoning ordinance requirement “that all mobile homes be supplied with a
    ‘continuing supply of safe and potable water as approved by the [Department of
    Environmental Protection]’ is permissible insofar as the [z]oning [b]oard only
    considers whether the applicant can supply sufficient potable water to the proposed
    development”).
    Here, Applicant’s expert Moncavage testified that water is needed to,
    among other things, wash the eggs. N.T. 6/1/16 at 71, R.R. at 199a. Therefore,
    water is a service necessary for the proposed use. Applicant did not present any
    evidence regarding the provision of a public water service to the Property. Rather,
    27
    Applicant’s expert Moncavage testified that two wells service the Property. N.T.
    6/1/16 at 73, R.R. at 201a.      Consequently, Applicant needed to establish the
    adequacy of this service.     See Zoning Ordinance § 2002(C)(6); Cf. Tink-Wig
    Mountain Lake Forest Prop. Owners Ass’n v. Lackawaxen Twp. Zoning Hearing
    Bd., 
    986 A.2d 935
    , 942 (Pa. Cmwlth. 2009) (holding that, although ordinance
    defined “essential services” as “public utility facilities . . .” such services could be
    provided by an individual and allowed for a wind turbine that would service just a
    single private home).
    Although Applicant argued, at oral argument held before the Court en
    banc, that nothing in the Zoning Ordinance requires a well test, an ordinance need
    not micromanage the manner in which an applicant must meet its burden. The
    Zoning Ordinance requires that the services and utilities be adequate to service the
    proposed use. How, or the manner in which, an applicant establishes that it meets
    this requirement is up to the applicant in terms of the evidence it chooses to present.
    In weighing the evidence, the Board rejected Applicant’s expert evidence on the well
    test, relying on Objectors’ expert testimony pointing out the insufficiency of the well
    tests according to industry standard for commercial applications. See F.F. ¶ W(1);
    see also Taliaferro v. Darby Twp. Zoning Hearing Bd., 
    873 A.2d 807
    , 811 (Pa.
    Cmwlth. 2005) (stating it is zoning hearing board’s function to weigh evidence).
    Additionally, and importantly, the Board observed that Applicant did
    not proffer sufficient evidence to allow the Board to determine the proposed use’s
    water consumption/water use rates.       Board’s Decision at 6, F.F. ¶ W(2).         In
    particular, the Board found that Applicant failed to account for the additional water
    consumption/water use that would be required for wash water to be applied to eggs
    delivered from locations other than the farm located on or in the immediate vicinity
    28
    of the Property. Board’s Decision at 6, F.F. ¶ W(3). In short, Applicant’s evidence
    did not match the true extent of the proposed use.
    Further, the Board’s findings relative to the insufficiency of Applicant’s
    evidence regarding the adequacy of the water servicing the proposed use are
    supported by the record. Specifically, Applicant’s expert Moncavage testified that
    water is used in the facility for the following: as drinking water for the birds; to
    wash eggs and equipment, and by the employees. N.T. 6/1/16 at 71, R.R. at 199a.
    Additionally, Heisler admitted that he imports eggs to wash at the Property and that
    this was not mentioned in his zoning application. N.T. 6/29/16 at 77-78, R.R. at
    352a-53a. Heisler also acknowledged that the more eggs that are processed, the
    more water that is used. N.T. 6/29/16 at 78, R.R. at 353a. Objectors’ expert,
    DiMagno, testified that she did not see in the numbers submitted to the Board any
    reference to eggs from third parties brought to the Property to be washed, which
    would impact the water usage. N.T. 8/24/16 at 25-26, R.R. at 487a-88a. DiMagno
    further testified that she was not aware of Applicant submitting any water adequacy
    study, so she had concerns “as to exactly what is the water usage and water
    consumption for this facility.” N.T. 8/24/16 at 22-23, R.R. at 484a-85a. By failing
    to accurately and adequately account for the true extent of the proposed use and,
    consequently, the water required for such use, Applicant failed to proffer sufficient
    evidence to allow the Board to determine whether the services and utilities would be
    sufficient for the use. See Elizabethtown/Mt. Joy Assocs., L.P. v. Mount Joy Twp.
    Zoning Hearing Bd., 
    934 A.2d 759
     (Pa. Cmwlth. 2007) (finding developer failed to
    demonstrate compliance with ordinance to establish entitlement to special exception
    where opinions of expert were based on erroneous data and submitted plan did not
    depict some of the assumptions made by expert or depicted them incorrectly).
    29
    As such, the Board’s decision is legally inconsistent—that is, the
    Board’s finding, supported by substantial evidence, that Applicant did not proffer
    sufficient evidence to allow the Board to determine the proposed water consumption
    and/or water use rates, F.F. ¶ W(2), cannot as a matter of law support the Board’s
    conclusion that services and utilities are available to adequately service the proposed
    use. Therefore, because Applicant failed to proffer sufficient evidence to meet its
    burden, Applicant failed to establish, in the first instance, that its use was permitted
    and that it was entitled to a special exception. See Bray, 410 A.2d at 911 (stating
    “applicant must bring the proposal within the specific requirements expressed in the
    ordinance for the use”). As a result, Applicant never received the presumption that
    the proposed use is consistent with the health, safety and general welfare of the
    community, and so the burden never shifted to Objectors. Blancett-Maddock, 
    6 A.3d at 600
    . Consequently, although the trial court affirmed the Board’s determination
    that Objectors met their burden, and Applicant argues this was error, we do not reach
    Applicant’s arguments in this regard.
    Accordingly, we affirm, albeit on other grounds.15
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge
    15
    “An appellate court is permitted to affirm an order of the trial court on other grounds if
    the correct result was reached.” Citimortgage, Inc. v. KDR Investments, LLP, 
    954 A.2d 755
    , 756
    n.2 (Pa. Cmwlth. 2008).
    30
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Heisler’s Egg Farm, Inc.,             :
    Appellant           :
    :
    v.                         :
    :
    Walker Township Zoning Hearing        :
    Board and David Bensinger and         :   No. 780 C.D. 2017
    Margaret Bensinger                    :
    ORDER
    Now, this 28th day of May, 2020, the order of the Court of Common
    Pleas of Schuylkill County, dated May 22, 2017, is AFFIRMED.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Heisler’s Egg Farm, Inc.,                       :
    Appellant         :
    :
    v.                       :
    :
    Walker Township Zoning                          :
    Hearing Board and David Bensinger               :   No. 780 C.D. 2017
    and Margaret Bensinger                          :   Argued: November 14, 2018
    BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE PATRICA A. McCULLOUGH, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    HONORABLE ELLEN CEISLER, Judge
    DISSENTING OPINION
    BY JUDGE COVEY                                               FILED: May 28, 2020
    Because I believe the Schuylkill County Common Pleas Court (trial
    court) erred by denying Heisler’s Egg Farm, Inc.’s (Applicant) request for a deemed
    approval based upon the Walker Township Zoning Hearing Board’s (ZHB) failure to
    hold timely hearings in accordance with the Pennsylvania Municipalities Planning
    Code (MPC),1 I would reverse the trial court’s order and remand the matter to the
    trial court to remand to the ZHB to grant Applicant’s request for a deemed approval
    pursuant to Section 908(9) of the MPC.
    Initially, Section 908(1.2) of the MPC requires:
    The first hearing before the [ZHB] . . . shall be commenced
    within 60 days from the date of receipt of the applicant’s
    application, unless the applicant has agreed in writing to an
    1
    Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202.
    extension of time. Each subsequent hearing before the
    [ZHB] . . . shall be held within 45 days of the prior
    hearing, unless otherwise agreed to by the applicant in
    writing or on the record. An applicant shall complete the
    presentation of his case-in-chief within 100 days of the first
    hearing. Upon the request of the applicant, the board or
    hearing officer shall assure that the applicant receives at
    least seven hours of hearings within the 100 days, including
    the first hearing. Persons opposed to the application shall
    complete the presentation of their opposition to the
    application within 100 days of the first hearing held
    after the completion of the applicant’s case-in-chief. An
    applicant may, upon request, be granted additional hearings
    to complete his case-in-chief provided the persons opposed
    to the application are granted an equal number of additional
    hearings. Persons opposed to the application may, upon the
    written consent or consent on the record by the applicant
    and municipality, be granted additional hearings to
    complete their opposition to the application provided the
    applicant is granted an equal number of additional hearings
    for rebuttal.
    53 P.S. § 10908(1.2) (emphasis added).       Section 908(9) of the MPC mandates:
    “[W]here the board . . . fails to commence, conduct or complete the required
    hearing as provided in subsection (1.2), the decision shall be deemed to have
    been rendered in favor of the applicant unless the applicant has agreed in
    writing or on the record to an extension of time.” 53 P.S. § 10908(9) (emphasis
    added).
    Here, the record discloses that, on July 13, 2016, David and Margaret
    Bensinger’s (collectively, Objectors) Counsel faxed Zoning Solicitor Robert S.
    Frycklund (Solicitor) and Applicant’s Counsel a letter “requesting that the [ZHB]
    hearing be continued until a later date[,]” because his “expert, . . . [Serena A.]
    DiMagno is not available for testimony on Monday, July 25, 2016.” Reproduced
    Record (R.R.) at 773a (emphasis added). Thereafter, at the July 25, 2016 meeting,
    Objectors’ Counsel reiterated:
    AEC - 2
    Between last month’s meeting and this month’s meeting,
    obviously, I sent the letter asked [sic] for a continuance.
    And it’s my understanding that [] [A]pplicant opposes any
    continuance and respectfully requesting [sic] that this
    [ZHB]-- and you do have the power to grant a continuance
    until the dates that we’re speaking about in August -- and I
    think those dates, [] Solicitor, were somewhere in late - mid
    to late August.
    August -- I think I have - we had talked about various dates
    that you were available, myself was available. I don’t know
    if [Applicant’s Counsel] participated, at least, giving those
    dates. But that’s what we were working on from July 13th
    until, I believe, last Thursday or Friday, whenever []
    [A]pplicant was opposing our continuance request.
    But officially I would ask again to continue this hearing
    to afford my client[s] an opportunity to present their expert
    testimony in what we believe is an important case. And
    certainly is going to highlight what we believe are
    important issues.
    R.R. at 440a-441a (emphasis added). Applicant’s Counsel opposed the continuance,
    expounding:
    [A]pplicant opposes continuing this until the middle of --
    leaving the record open and continue [sic] this until some
    time in August. Section 908[(1.2)] of the [MPC] says that
    each subsequent hearing before the [ZHB] or hearing
    officer shall be held within 45 days of the prior hearing
    unless otherwise agreed to by the applicant in writing or on
    the record.
    The dates that we were looking at, I believe, were all out
    beyond this 45 days. And as [A]pplicants, we respectfully
    aren’t going to approve this extension of this 45[-]day time.
    R.R. at 444a-445a (emphasis added). After going off the record and meeting in
    executive session, the ZHB unanimously granted the continuance as follows:
    [SOLICITOR]: Okay. We’re back on the record. Again,
    we convened for a short -- I think that was about ten
    minutes. I didn’t look at the clock when we left just to
    discuss Section 908 [of the MPC] and the request for a
    continuance that’s before the [ZHB]. So with that --
    AEC - 3
    MR. LEIBY: Is there a motion to grant a continuance?
    MR. PASSON: Motion.
    MR. LEIBY: Motion is made. Is there [a] second?
    MR. FARRELL: I’ll second it.
    MR. LEIBY: All say, aye.
    MR. PASSON: Aye.
    MR. FARRELL: Aye.
    MR. LEIBY: Opposed? Ayes have it. So a continuance is
    granted.
    R.R. at 454a-455a (emphasis added).
    Applicant’s Counsel preserved his objection, stating: “Can I put on the
    record -- I guess we have to show up for the continuance. That, on the record, is
    not a waiver of our rights to have a hearing held within 45 days.                  Our
    participation isn’t our consent.”   R.R. at 455a (emphasis added).        The Solicitor
    responded:
    Yes. You may consider that issue preserved for the
    record. Again, we didn’t deliberate. We didn’t vote back
    in executive session. But I think it’s fair to say that the
    [ZHB] was concerned for due process. We do want to hear
    fully both sides of this case. And certainly without the -- it
    was outside of the control of [Objectors’ Counsel], his
    client, or any of the opposition that their expert was
    physically unable to make it tonight.
    And I think just reading Section 908[(1.2)] [of the MPC],
    we would rather err on the side of caution here and continue
    it so that we can hear the expert witness.
    And it’s properly within the 100 days of the first hearing
    heard after the completion of [] [A]pplicant’s case in chief,
    which we deemed to be tonight. So that would be where
    the 45 days would run for the next hearing.
    AEC - 4
    So with that, I think we need to now coordinate a date that
    we’re all going to be available within the next 45 days.
    And ideally, within the next 30 days.
    R.R. at 455a-456a (emphasis added).
    Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board, 
    925 A.2d 768
     (Pa. 2007), is the only case both parties cite in support of their arguments on the
    deemed approval issue. Therein, the Pennsylvania Supreme Court held:
    [R]elevant provisions of the [MPC] define the term
    ‘hearing’ very broadly, as ‘an administrative proceeding
    conducted by a [zoning hearing] board pursuant to [S]ection
    909.1 [of the MPC, 53 P.S. § 10909.12].’ [Section 107(b)
    of the MPC,] 53 P.S. § 10107(b). Section 908 [of the
    MPC], however, prescribes that a zoning hearing board
    ‘shall conduct hearings and make decisions in accordance
    with the following requirements,’ to include that ‘[t]he
    parties shall . . . be afforded the opportunity to respond and
    present evidence and argument and cross-examine adverse
    witnesses on all relevant issues.’ 53 P.S. § 10908(5).
    Wistuk, 925 A.2d at 775. In determining whether the ZHB meeting at issue was a
    hearing pursuant to the MPC, the Wistuk Court concluded:
    None of these features was attendant to the . . . meeting in
    this case. Although the [zoning hearing b]oard considered
    the parties’ briefs at the session (which obviously contained
    ‘argument’), the briefs were not presented to the [zoning
    hearing board at the meeting]; rather, the protocol
    established by the [zoning hearing b]oard solicitor was that
    the briefs were to be submitted in advance to him and
    circulated by him to the [zoning hearing b]oard.
    Id. Similarly, here, the ZHB merely decided the continuance request that was before
    it prior to the meeting.
    The Majority opines that “[c]ontrary to Applicant’s assertion, the facts
    and circumstances surrounding the ‘hearing’ in question in Wistuk, are not analogous
    2
    Added by Section 87 of the Act of December 21, 1988, P.L. 1329.
    AEC - 5
    to those found in the instant matter[,]” because whether the record was open or closed
    on the date of the meeting was an issue in Wistuk, but not herein. Heisler’s Egg
    Farm, Inc. v. Walker Twp. Zoning Hearing Bd., ___ A.3d ___, ___ (Pa. Cmwlth. No.
    780 C.D. 2017, filed May 28, 2020), slip op. at 6. However, neither the Dissent nor
    either of the parties in the instant matter assert that the record was closed on July 25,
    2016, as that is not an issue before this Court. Rather, the issue before this Court is
    whether a hearing occurred on July 25, 2016. The Dissent and the parties herein rely
    upon Wistuk for its definition of a hearing, which is clearly applicable to the instant
    matter.
    In contrast thereto, the Majority maintains that Gaster v. Township of
    Nether Providence, 
    556 A.2d 947
     (Pa. Cmwlth. 1989), and Hogan, Lepore & Hogan
    v. Pequea Township Zoning Board, 
    638 A.2d 464
     (Pa. Cmwlth), appeal denied, 
    647 A.2d 905
     (Pa. 1994), should guide this Court’s analysis. See Heisler’s Egg Farm,
    slip op. at 14. In both cases, this Court determined, based upon Section 908(5) of the
    MPC, that the meetings held for the purpose of closing arguments were in fact
    hearings. In doing so, the Court based its decisions on Section 908(5) of the MPC’s
    specific language, which expressly provides: “The parties shall have the right to be
    represented by counsel and shall be afforded the opportunity to respond and present
    evidence and argument and cross-examine adverse witnesses on all relevant issues.”
    53 P.S. § 10908(5) (emphasis added). Accordingly, argument is squarely within the
    statute. Thus, Gaster and Hogan are inapposite.
    Here, the Majority claims the Objectors presented evidence, i.e., the
    continuance request and the expert’s resume, thus, the meeting did constitute a
    hearing under the above definition. However, the continuance request does not “tend
    to prove or disprove a matter in issue,” Relevant Evidence, Black’s Law Dictionary
    AEC - 6
    (10th ed. 2014), and thus is not “evidence” on the “relevant issues” before the ZHB3
    and as the Dissent defined. 53 P.S. § 10908(5). Further, contrary to the Majority’s
    position, the resume could not be “cross-examine[d],” and thus, no weight could be
    given thereto. 53 P.S. § 10908(5). Indeed, a resume by itself, like any document,
    without the opposing party being given the opportunity to challenge the document, is
    not relevant evidence because it does not “tend to prove or disprove a matter in
    issue.” Black’s Law Dictionary (10th ed. 2014).             Evidence only has value and
    therefore is relevant to the issue in dispute when there is an opportunity to challenge
    it. Because Applicant did not have that opportunity, the resume had no evidentiary
    value. As the Pennsylvania Supreme Court has long since recognized:
    In law, where a controversy is involved, a hearing intends a
    judgment bench attended by judges or officials sitting in a
    judicial capacity, prepared to listen to both sides of the
    dispute and to consider deeply, reflect broadly, and decide
    impartially. Studying papers is not a hearing; passing on a
    report moving across one’s desk is not a hearing.
    Unora v. Glen Alden Coal Co., 
    104 A.2d 104
    , 106 (Pa. 1954).                    Similarly, the
    admission of a continuance request and a resume “is not a hearing.” 
    Id.
    Section 908 of the MPC, entitled “Hearings,” specifically provides that
    “[t]he [ZHB] shall conduct hearings and make decisions in accordance [there]with . .
    . .”   53 P.S. § 10908.        Consequently, a hearing is as described therein and
    continuances are not granted at the discretion of the ZHB as with most agencies, 4 but
    rather within the confines of the time limits provided within this sui generis statute.
    To use the submission of the continuance request and the resume, which could not be
    challenged because the witness was unavailable, as the basis for converting a 35-
    3
    As stated by the Zoning Solicitor, the issue before the ZHB was “the Application of
    [Applicant] for a special exception.” R.R. at 279a.
    4
    See Luzerne Cty. Children & Youth Servs. v. Dep’t of Human Servs., 
    203 A.3d 396
    , 398
    (Pa. Cmwlth. 2019) (“The grant or refusal of a continuance rests in the discretion of the . . .
    administrative agency to which the application is made[.]”).
    AEC - 7
    minute meeting into a hearing where mandatory statutory deadlines exist and where a
    hearing could have been scheduled before the date of such deadline, is in
    contravention of the General Assembly’s clear intent and precedent as well as
    condones the “gamesmanship” the courts have rigorously opposed.
    In Q & D, Inc. v. Board of Commissioners of Haverford Township (Pa.
    Cmwlth. No. 1207 C.D. 2006, filed April 16, 2009),5 this Court, relying upon Wistuk,
    determined that a continuance request was not a hearing for purposes of Section 908
    of the MPC. Specifically, the Q & D Court explained:
    A review of the transcript of the proceeding before the
    [z]oning [h]earing [b]oard on January 15, 2004, reveals that
    the same was not a hearing. It is clear that the [z]oning
    [h]earing [b]oard’s only intention on January 15, 2004,
    with respect to Q & D’s zoning application, was to
    consider a request for a continuance by the Township’s
    newly[-]appointed counsel, Attorney Lynch.               The
    transcript shows that the [z]oning [h]earing [b]oard
    received, in advance of the January 15, 2004, proceeding, a
    letter dated January 13, 2004, from Attorney Lynch wherein
    he requested a continuance of the matter to the next
    available zoning hearing so that he could properly prepare
    for the case. The transcript further shows that the [z]oning
    [h]earing [b]oard had also received in advance a letter from
    Q & D’s counsel, Attorney Quinn, and that the [z]oning
    [h]earing [b]oard was under the impression that Attorney
    Quinn did not oppose a continuance. As such, since the
    [z]oning [h]earing [b]oard members did not object, the
    Chairman of the [z]oning [h]earing [b]oard recommended
    that the matter be continued until February 5, 2004. After
    Zoning Officer Hanlon-Widdop informed the [z]oning
    [h]earing [b]oard that Attorney Quinn was not available on
    February 5, 2004, and therefore suggested that the hearing
    be continued until February 19, 2004, the [z]oning [h]earing
    5
    This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
    but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
    Procedures, 
    210 Pa. Code § 69.414
    (a).
    AEC - 8
    [b]oard, without objection, continued the case to February
    19th.
    There is no indication in the transcript that the [z]oning
    [h]earing [b]oard had any intention during the
    proceeding on January 15, 2004, to afford the parties
    the opportunity to respond, present evidence and
    argument and cross-examine adverse witnesses on all
    relevant issues. Moreover, the record reveals that the
    members of the [z]oning [h]earing [b]oard were polled in
    advance and the consensus was that the matter would be
    continued on January 15, 2004, to the next available date.
    The record further reveals that the parties and their counsel
    were notified by Zoning Officer Hanlon-Widdop that the
    continuance would be granted. Accordingly, we conclude
    that the trial court erred by determining that the proceeding
    before the [z]oning [h]earing [b]oard on January 15, 2004,
    was a hearing within the meaning of the MPC.
    
    Id.,
     slip op. at 9-10 (bold and underline emphasis added; record citations omitted).
    The Majority attempts to distinguish Q & D by stating:
    Here, unlike Q & D, no decision was made prior to the July
    25th meeting that the hearing would be continued. Instead,
    all parties and counsel appeared as scheduled on July 25th,
    knowing that they had to be prepared to proceed. See
    Transcript [H.T.] 7/25/16 at 1-23, R.R. at 435a-57a. The
    record was opened, counsel for Objectors began by
    announcing that it was the continuation of his case, and he
    later made the request for a continuance.
    Heisler’s Egg Farm, slip op. at 14-15 (emphasis added). However, in both cases, the
    continuance requests were made in advance. The only difference herein is that
    Applicant objected thereto which it was entitled to do. Thus, the purpose of the
    meeting was to discuss the continuance, not “to respond and present evidence and
    argument and cross-examine adverse witnesses on all relevant issues.” 53 P.S. §
    10908(5). Further, Objectors were not “prepared to proceed” on July 25, 2016, as
    their only remaining witness was unavailable, nor was there a “continuation of [their]
    case,” as stated by the Majority. Heisler’s Egg Farm, slip op. at 15. Identical to Q &
    AEC - 9
    D, “the [ZHB’s] only intention on [July 25, 2016], with respect to [Applicant’s] []
    [A]pplication, was to consider a request for a continuance by [Objectors.]” Q & D,
    slip op. at 9. Accordingly, Q & D controls.
    The Majority maintains that the submission of DiMagno’s resume and
    Objectors’ continuance request transformed the meeting into a hearing on the merits.
    However, the Dissent agrees with Applicant that those exhibits merely laid the
    foundation for the continuance request. First, as stated above, the letter wherein the
    continuance request was made was submitted to the ZHB on July 13, 2016. Thus,
    there was no need for the submission on July 25, 2016. Moreover, the admittance of
    DiMagno’s resume did not advance the resolution of Applicant’s special exception
    because any objection to DiMagno’s qualifications could only be established through
    voir dire of DiMagno herself, not her resume. See Anderson v. McAfoos, 
    57 A.3d 1141
     (Pa. 2012). The resume had no evidentiary value because it could not be
    challenged, as there was no ability to cross-examine it due to the absence of the
    witness whose absence was the sole reason for the continuance request.          Thus,
    DiMagno’s resume served no evidentiary purpose.
    This Court has expounded:
    Recently, our Supreme Court expressed concern over the
    operation of a deemed decision to the extent it foreclosed
    merit-based decisions, but felt compelled to apply the clear
    statutory language. See Wistuk . . . , [925 A.2d at] 775 . . . .
    Also, the Court encouraged solicitors to obtain clear
    agreements for extension of time on the record. 
    Id.
     at . . .
    775[] n.6.       Similarly, this Court is alert for
    gamesmanship which allows for the disposition of cases
    on timing issues rather than substantive grounds.
    Nextel Partners, Inc. v. Clarks Summit Borough/Clarks Summit Borough Council,
    
    958 A.2d 587
    , 591 (Pa. Cmwlth. 2008) (emphasis added).
    AEC - 10
    In the instant case, Applicant clearly communicated its objection to the
    continuance and reason therefor.     In response thereto, Objectors had available
    options, i.e., they could have requested a date on or before August 15, 2016 to be
    within the required time limit, rested their case laid out on the merits or retained
    another expert. Instead, Objectors and the ZHB gambled that the MPC’s mandatory
    provisions would not be upheld.              Objectors and the ZHB employed
    “gamesmanship” here in their disingenuous argument that the July 25, 2016 meeting
    was a hearing. Nextel Partners, Inc., 
    958 A.2d at 591
    . The ZHB and the parties fully
    understood the time issue and the consequences of their decisions.           Objectors’
    Counsel suggested at the meeting:
    Here’s what I think might happen is, I can honestly see [the]
    trial court saying to [the ZHB], you didn’t permit a witness,
    you didn’t give them a fair shake. Both the [A]pplicant
    and/or the property owner. And then we’re [in a] situation .
    . . where the [trial court] remands the case back [sic] to you
    folks to hear testimony.
    And I’m not trying to waste your time. I think [Objectors]
    ha[ve] been very fair and told you folks right away when
    there was an issue regarding scheduling. And that’s why
    we’re here again.
    But ultimately that’s your decision. I’m not suggesting
    that [Applicant’s Counsel] is misinterpreting the law. I
    know the shot clock. I do enough zoning hearing board
    work. I get it.
    R.R. at 451a-452a (emphasis added). The record leaves no doubt that the ZHB did
    nothing more than rule on Objectors’ previously submitted continuance request.
    As the Wistuk Court explained:
    We recognize the severity of Section 908(9) [of the MPC],
    in that it forecloses merits-based decisions concerning land-
    use matters, which may be of tremendous consequences to
    local governments and citizens, based on procedural non-
    compliance by a zoning hearing board. It is not our task,
    AEC - 11
    however, to evaluate the wisdom of this approach or its
    specific aspects. Rather, where as here there is no
    constitutional challenge, our function is to apply the law
    as prescribed by the General Assembly. On this record,
    we conclude that it would strain the relevant statutory
    language to find that the [ZHB’s July 25, 2016 meeting]
    convened solely for purposes of [ruling on Objectors’
    continuance request] represented a hearing, or, . . . that
    [Applicant] waived [its] entitlement to a [hearing] within
    forty-five days after the [previous] hearing on [June 29,
    2016].
    Wistuk, 925 A.2d at 775 (emphasis added).
    The Majority concludes:
    While recognizing the time constraints within which a
    zoning board must reschedule hearings, the decision itself
    to continue the hearing was within the discretion of the
    [ZHB]. See Bass v. Zoning Bd. of Adjustment of City of
    Phila. (Pa. Cmwlth. No. 2179 C.D. 2013, filed Aug. 12,
    2014), slip op. at 3 (stating it is within tribunal’s discretion
    whether to grant continuance request); cf. Hogan, 638 A.2d
    at 468 (finding board did not abuse its discretion in fixing
    separate hearing solely for purpose of considering legal
    argument). There is nothing in the record to support any
    abuse of discretion in granting the continuance. After
    granting the continuance, the [] Solicitor explained that the
    [ZHB] was concerned about due process and that the [ZHB]
    wanted to hear fully both sides of the case. H.T. 7/25/16 at
    21, R.R. at 455a.
    Heisler’s Egg Farm, slip op. at 17. Taking the Majority’s position to its logical
    conclusion, the MPC’s mandatory time limits would be non-existent. If every time a
    continuance request is objected to and the record is opened for the purpose of
    deciding it, it is construed as a hearing, then there would be no need for the General
    Assembly to have enacted the remedy of deemed approval, because it would never
    occur. The General Assembly, however, believed the time restraints are so important
    that it included the remedy of deemed approval with no exceptions. As Applicant
    stated on July 25, 2016: “To have a hearing to talk about whether to continue a
    AEC - 12
    hearing, that just doesn’t seem right.” R.R. at 452a-453a. The language of Section
    908(9) of the MPC is clear, and it is this Court’s duty to uphold the same.
    Moreover, the ZHB had a statutory duty to uphold the time limits and
    notwithstanding that it was squarely confronted with the issue, it chose to walk away
    therefrom. In fact, when the ZHB had the executive session at the end of the meeting
    on July 25, 2016, the purpose was to decide whether it would accept Objectors’
    argument that submitting the continuance request and the resume transformed the
    meeting into a hearing on the issues. However, when the ZHB returned, it granted
    the continuance without making such determination.
    Most importantly, the Majority asserts a position that this Court has long
    since rejected:
    In interpreting [Section 908(9) of the MPC], we are mindful
    of the Pennsylvania Supreme Court’s admonishment to
    apply a strict interpretation of and adherence to the
    procedural provisions of zoning statutes. Humble Oil [&]
    Refining Co. v. E[.] Lansdowne Borough, . . . 
    227 A.2d 664
    ([Pa.] 1967). We also note that the use of the word ‘shall’
    in a statute is generally considered imperative. A statute is
    mandatory if the thing directed to be done reflects the
    essence of a statute’s purpose.
    The Pennsylvania Supreme Court, recognizing that
    initiative, consideration, and decision are commonly
    controlled by procrastination rather than celerity, stated as
    follows with regard to the purpose of [Section] 908(9) [of
    the MPC]:
    The Legislature recognized the existence of this
    inertia in the orderly disposition of pending
    governmental matters, and, accordingly, wisely
    provided that when a board of adjustment indolently
    allows 45 days to go by without a decision
    following a hearing, the complaining party shall
    have the benefit of that slothful inattention and gain
    the requested permit.       Without this kind of
    coercive determination, a [zoning hearing] board
    could effectively prevent the erection of needed
    AEC - 13
    structures through the simple process of
    luxurious lolling while spiders of inattention spin
    webs of indifference over pending public
    problems.
    Humble Oil, . . . 227 A.2d at 666.
    Because Humble Oil was decided before the MPC required
    a hearing within sixty days, that decision addressed only the
    requirement that the board reach a decision within forty-five
    days of the last zoning board hearing. However, the intent
    of the legislature, as elucidated in Humble Oil, remains
    the same for the entire section as it stands today.
    Accordingly, we have recognized that [Section] 908(9) [of
    the MPC] was designed to curb the evils of
    procrastination, delay and frustration of decision.
    Therefore, the language of that section which provides
    that a decision ‘shall be deemed to have been rendered
    in favor of the applicant,’ where the [zoning hearing]
    board fails to hold the required hearing within 60 days,
    is imperative.
    Grim v. Borough of Boyertown, 
    595 A.2d 775
    , 779 (Pa. Cmwlth. 1991) (citations
    omitted; bold and underline emphasis added).
    The Grim Court further rebuked the trial court:
    The trial court chose to ignore this mandate and relied on
    this [C]ourt’s decisions in Price v. Hanover Township
    Zoning Hearing Board, . . . 
    455 A.2d 1267
     ([Pa. Cmwlth.]
    1983) and Joseph Ciccone & Sons, Inc. v. Lower Saucon
    Township Zoning Hearing Board, . . . 
    539 A.2d 942
     ([Pa.
    Cmwlth.] 1988), to support the conclusion that deemed
    approval will not be granted where extenuating
    circumstances cause a hearing to be held more than sixty
    days after an applicant files a request, and the [zoning
    hearing] board conscientiously pursues timely disposition of
    that request. This standard is not supported by those
    cases, exists nowhere in our case law, and is inconsistent
    with the intent of [Section] 908(9) [of the MPC].
    Grim, 
    595 A.2d at 779-80
     (emphasis added). Similarly, here, the Majority posits that
    the fact that Objectors’ expert was truly unavailable and Objectors requested the
    AEC - 14
    continuance in advance, this Court should ignore the MPC’s mandated time
    constraints. “This standard . . . exists nowhere in our case law, and is inconsistent
    with the intent of [Section] 908(9) [of the MPC].” Grim, 
    595 A.2d at 779-80
    . To
    rule as the Majority suggests would require overruling this precedent.
    Finally, the Majority attempts to justify its erosion of the MPC’s
    mandatory time constraints by stating:
    The Court cautions that our determination regarding the
    lack of a deemed approval in this matter is strictly limited to
    the specific and unique facts herein. Upon a close review
    of these facts, coupled with the relevant statutory language
    set forth in Section 908 of the MPC, the Court concludes
    that the July 29 proceeding herein constitutes a
    ‘hearing’ by the narrowest of margins. While the facts of
    this particular case are distinguishable from those presented
    in Wistuk, this opinion upholds the statutory
    requirements as stated in Wistuk, specifically, that
    ‘[e]ach subsequent hearing before the board . . . shall be
    held within 45 days of the prior hearing, unless
    otherwise agreed to by the applicant in writing or on the
    record,’ and a deemed approval will result ‘where the
    board fails to render the decision’ within 45 days after
    the last hearing.        See 53 P.S. § 10908(1.2), (9).
    Furthermore, this Court does not condone gamesmanship,
    and while we do not believe that the same occurred herein,
    we take this opportunity to discourage and caution against
    such actions.
    Heisler’s Egg Farm, slip op. at 17 n.12 (emphasis added). The Majority is not
    upholding Wistuk by concluding a hearing “by the narrowest of margins” occurred.
    Heisler’s Egg Farm, slip op. at 17 n.12. Rather, the Majority is usurping the General
    Assembly’s authority by creating its own exceptions to the clear statutory mandate;
    this Court lacks any such power to restate public policy, which herein, the General
    Assembly has unequivocally pronounced. By finding that a hearing occurred because
    the expert was truly unavailable and the ZHB was concerned with due process, the
    Majority has blatantly disregarded the admonishment in Grim that the proposition
    AEC - 15
    “that deemed approval will not be granted where extenuating circumstances cause a
    hearing to be held more than sixty days after an applicant files a request, and the
    [zoning hearing] board conscientiously pursues timely disposition of that request[,]”
    is not supported anywhere in our case law, and is inconsistent with the intent of
    Section 908(9) of the MPC. Grim, 
    595 A.2d at 779
    .
    In summary, because Applicant did not agree to the continuance in
    writing or on the record (indeed, Applicant vehemently objected thereto), and the
    ZHB is not authorized to ignore the MPC’s mandates under the guise of due process,
    Applicant is entitled to a deemed approval. Accordingly, the Dissent would reverse
    the trial court’s order and remand the matter to the trial court to remand the matter to
    the ZHB to grant Applicant’s request for a deemed approval pursuant to Section
    908(9) of the MPC.
    __________________________
    ANNE E. COVEY, Judge
    Judge McCullough joins in this dissenting opinion.
    AEC - 16
    

Document Info

Docket Number: 780 C.D. 2017

Judges: Fizzano Cannon, J. ~ Dissenting Opinion by Covey, J.

Filed Date: 5/28/2020

Precedential Status: Precedential

Modified Date: 5/28/2020

Authorities (16)

Taliaferro v. Darby Tp. Zoning Hearing Bd. , 873 A.2d 807 ( 2005 )

Gaster v. Township of Nether Providence , 124 Pa. Commw. 595 ( 1989 )

Schatz v. New Britain Township Zoning Hearing Board of ... , 141 Pa. Commw. 525 ( 1991 )

Grim v. Borough of Boyertown , 141 Pa. Commw. 427 ( 1991 )

Commonwealth, Office of Attorney General v. East Brunswick ... , 2009 Pa. Commw. LEXIS 1118 ( 2009 )

Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy ... , 2007 Pa. Commw. LEXIS 542 ( 2007 )

Manor Healthcare Corp. v. Lower Moreland Township Zoning ... , 139 Pa. Commw. 206 ( 1991 )

Nextel Partners, Inc. v. Clarks Summit Borough , 2008 Pa. Commw. LEXIS 501 ( 2008 )

East Manchester Township Zoning Hearing Board v. Dallmeyer , 147 Pa. Commw. 671 ( 1992 )

Crystal Forest Associates, LP v. Buckingham Township ... , 2005 Pa. Commw. LEXIS 800 ( 2005 )

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Blancett-Maddock v. City of Pittsburgh Zoning Board of ... , 2010 Pa. Commw. LEXIS 513 ( 2010 )

South Lebanon Township Zoning Hearing Board v. Weber , 140 Pa. Commw. 177 ( 1991 )

Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board , 2005 Pa. Commw. LEXIS 699 ( 2005 )

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