Who Knows? Timeliness of Objector Appeals of Zoning Permit Approvals

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) 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 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. See 53 P.S. Section 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. 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 30 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.” Once a potential objector has either actual or constructive notice of the approval, the 30-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 that 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.