Who Knows? Timeliness of Objector Appeals of Zoning Permit Approvals

Legal Intelligencer

(By Blaine Lucas and Anna Jewart)

While property rights are often viewed as inherently private, both law and society recognize that there is also a public nature to the use of land.  To this end, the Pennsylvania Municipalities Planning Code (MPC)1 establishes requirements mandating public notice of and allowing for public participation in the land use decision-making process.  For example, where a landowner requests a variance or special exception from the zoning hearing board, or a conditional use from the governing body, those entities must publish notice of and hold a public hearing on the application.  At that hearing, impacted members of the public may comment on and/or object to the application.  However, land use decisions for what are called “uses by right” are not made by the governing body or the zoning hearing board, but instead are addressed at an administrative level by the municipal zoning officer.  Upon receipt of an application for a use by right, a zoning officer is not required to provide any public notice, public hearing, or public comment period.  As a result, members of the public may not learn of a zoning officer’s approval until the landowner actually commences construction, which could be long after any permit was issued.

The zoning hearing board has jurisdiction over appeals from the determinations of a zoning officer.  53 P.S. §10909.1(3).  An appeal from a determination adverse to the applicant must be filed with the board within 30 days after notice of the determination is issued to the applicant.  53 P.S. §10914.1(b).  In this situation, the appeals deadline is easy to calculate.  However, when an application is granted, individuals who may wish to oppose the application may not have any idea such a decision occurred.  Under Section 914.1(a) of the MPC, no person seeking to reverse or limit such an approval is allowed to file any proceeding before a zoning hearing board later than thirty days after an application for development has been approved, “unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given.”  53 P.S. §10914.1(a).  Once a potential objector has either actual or constructive notice of the approval, the thirty-day clock will begin to run.  In other words, rather than formal notice, the event which begins the appeal period for a party objecting to approval of a zoning permit is either actual notice of permit issuance or the existence of circumstances which would give a person reason to believe that approval had occurred.  Pennsylvania Courts have consistently ruled that this is an objective standard that can be ascertained by the presence of construction visible to the public.

The Commonwealth Court recently considered exactly what type of activities are sufficient to constitute constructive knowledge of issuance of a permit.  In Quakertown Holding Corporation v. Quakertown Borough Zoning Hearing Board, No. 542 C.D. 2021 (July 18, 2022), a developer (Developer) was granted building, zoning, and electrical permits (Permits) required to construct a billboard on property that previously was used solely as a retail drug store (Property).  The approvals were granted in January 2017.  In August 2017, after engaging in preconstruction tasks such as marking out the foundation and surveying the area, the Developer commenced excavation on the Property for construction of the billboard.  During August and September the Developer laid rebar and poured multiple levels of concrete foundation.  In October, it began installing electrical conduit, erected an approximately 10-foot-tall cylindrical structure, and installed steel platforms on the foundation.  Throughout September and October, construction materials and vehicles were continually present on the Property, and all activities and structures were visible to the public.  On November 15, 2017, the owner of an adjacent shopping complex (Objector) filed an appeal with the Borough Zoning Hearing Board which, following multiple public hearings between December 2017 and August 2018, determined the Objector had constructive notice of the issuance of the Permits earlier than thirty days prior to its appeal, and therefore the appeal was untimely.  Following appeal by the Objector, the trial court affirmed, and the Objector appealed to the Commonwealth Court.

Before the Commonwealth Court, the Objector raised three issues, the first of which alleged that the trial court erred by finding its appeal to be untimely because substantial evidence did not exist to support the conclusion that the Objector had constructive notice of issuance of the Permits.  In deciding this issue, the Court noted that the timeliness of an appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of the court to hear and decide the appeal.  Courts therefore have no power to extend the period for taking appeals, absent fraud or a breakdown in the court’s operation through a default of its officers.  The Court considered the application of Section 914.1(a) of the MPC, noting that while either actual or constructive notice suffices to convey the required notice, knowledge, or reason to believe that an approval has been granted, actual notice is not a requirement of the MPC.  Ultimately, the Court found no error in the trial court’s conclusion that the Objectors had constructive notice of issuance of the Permits by October 11, 2017, at the latest, and that the laying of rebar, pouring of three layers of concrete, construction of a 10-foot base and attachment of steel platforms to the foundation would have given a reasonable person cause to believe that permit approvals of some sort had been granted.  Because Objector filed its appeal more than 30 days later, the appeal was untimely.  In light of its disposition of the timeliness issue, the Court did not address the other issues raised by the Objector.

Although the opinion is unreported, Quakertown Holding serves as a reminder to both applicants and potential objectors on how to protect their respective interests.  Potential objectors should note that while the MPC provides some relief from the requirement that appeals be filed within thirty days of a zoning officer’s determination, that relief is not unlimited.  Immediately upon observing any activity on the subject property, a potential objector should contact the municipal zoning officer and inquire as what permits, if any, have been granted.  If the objector questions whether the zoning officer’s determination was correct, he or she should immediately file an appeal with the zoning hearing board.

Conversely, there are several steps applicants can take to avoid late in the game appeals, which, even if ultimately denied as untimely, can result in undue delay and expense.  While, as the Court noted in Quakertown Holding, actual notice is not required by the MPC, an applicant can give nearby property owners actual notice of its receipt of a zoning or other permit approval, thereby triggering the running of the appeals deadline.  If properly executed, providing direct notice can protect an applicant from the risk of commencing construction only to have the relevant permits overturned on appeal.  If actual notice directly to potential objectors is not advisable or feasible, an applicant might also consider whether it should provide a form of more general notice to the public that approval has been received.  For example, placing signage on the property, or publishing a legal advertisement, may aid in establishing an earlier date of constructive notice should an untimely appeal be filed.

Blaine A. Lucas is a Shareholder in the Public Sector Services and Energy and Natural Resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir.  Anna S. Jewart is an associate in Babst Calland’s Public Sector Services group and focuses her practice on zoning, subdivision, land development, and general municipal matters.

1 53 P.S. §§10101 et. seq.

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Reprinted with permission from the August 25, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.