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Last year, the Pennsylvania Supreme Court was called upon to answer a very specific and seemingly obvious question in the land use context. The issue, which surfaced in Narberth v. Merloc, was actually decided in February 2007 and concerned the time limitation on an objector’s appeal. Specifically, what is the operative trigger date for a statutory appeal? Most of us would surmise that the appropriate commencement date would be the date a decision is entered. But exactly what constitutes “entry” for purposes of this discussion? Section 1002-A of the Municipal Planning Code offers the following guidance: “All appeals from all land-use decisions . . . shall be taken to the court of common pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision as provided in 42 Pa.C.S. Section 5572 (relating to time of entry of order) or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given as set forth in Section 908(9) of this act.” And pursuant to 42 Pa.C.S. Section 5572, the date of “entry of the decision” is “[t]he date of service of an order of a government unit, which shall be the date of mailing if service is by mail.” As for defining a “decision,” the code provides that “[t]he decision of the governing body or the planning agency shall be in writing and shall be communicated to the applicant personally or mailing to him at his last known address not later than 15 days following the decision.” So at least on the surface, instinct and legal authority seem to suggest that the critical start date would be the date of the mailing of the decision. However, the issue is not so transparent for the Commonwealth Court, as illustrated in both Merloc and Peterson v. Amity Board of Supervisors. In Peterson, the Commonwealth Court confronted a situation in which the decision at issue had neither been communicated in writing to the applicant nor deemed approved under the code. Peterson, an objector, filed his appeal more than 30 days from the board’s oral approval. And under the particular facts of that case, the verbal decision marked that point in time “when the municipality’s decision process [had] been finalized with sufficient clarity that any party aggrieved by the decision [could] evaluate whether or not to appeal.” Turning to the Merloc decision, another case involving an appeal as to an objector’s timeliness, it is undeniable that March 20, 2002, was the date when the Lower Merion Township’s Board of Commissioner’s achieved its result. The local developer, Merloc Partners, presented a tentative sketch plan for a six-lot subdivision and the construction of a four-story residential building at public hearing. Narberth Borough’s Special Zoning Solicitor was in attendance, although the subject parcel merely abutted that municipality. At the meeting, the board announced its decision of approval, with 44 conditions. The solicitor even noted Narberth’s opposition and intent to appeal. The board did not formally issue and send out its decision until March 28, 2002. Although not a requirement under the code, the board additionally forwarded a courtesy copy to Narberth, an objector. Narberth eventually filed its appeal on April 26, 2002, less than 30 days from the mailing date yet more than 30 days from verbal publication. In the interim, Merloc proceeded with four conditional-use applications, unrelated to the board’s conditions and approved on April 18, 2002. Narberth would appeal those approvals as well. Merloc presented its challenge to the timeliness of Narberth’s original appeal by way of a motion to dismiss. Of course for Merloc, and in reliance upon solid precedent in Peterson, the hearing date was controlling. The trial court disagreed and went off the date of mailing. The lower court issued a subsequent order, which reversed the board’s approval of the tentative sketch plan, yet upheld the board as to the conditional-use applications. Notably, Merloc’s application did not strictly adhere to the mandates of the code, mainly that a conservatory plan inventory and information regarding soil type were omitted from the application. Cross appeals to the Commonwealth Court ensued. In addition to affirming the lower court on the conditional use applications, that court reversed on the issue of timeliness. As such, the trial court lacked jurisdiction to consider an appeal on the merits. Unsurprisingly, Narberth sought review before our state Supreme Court, which scrutinized the timing question. Additionally, it considered an artfully crafted theory presented by Merloc. During the pendency of the instant litigation, a parallel dispute developed regarding Merloc’s preliminary plan, the second of the three approval steps required by the code, with the third being the final plan. In response to a deadline of its own, Merloc filed its preliminary plan, taking into account the several dozen conditions earlier enumerated by the board. Satisfied, the board went on to approve the preliminary plan (one month before the lower court reversed the board’s approval of the tentative one), in turn generating another set of appeals by Narberth. There would be no reversals this time for Narberth, though. The preliminary plan approval was eventually finalized with the state Supreme Court’s denying allowance of appeal. With this newfound finality, Merloc was able to argue with a proverbial straight face that any pending issues implicating the tentative plan had been mooted. In other words, the tentative plan and accompanying stipulations, the first step, had been subsumed in its entirety by the approved preliminary plan, the second step. The preliminary plan would actually govern the development of the subject property. Narberth’s perspective on the approval process was much different. For Narberth, each step is discrete and contains unique requirements. Furthermore, a preliminary plan designed around an allegedly defective tentative one is by its very definition defective as well; approval of one is not approval as to all. Finally, the conditions resulted from an incomplete application. Had a complete package been filed from the start, additional conditions that could not have been accounted for in the preliminary plan might have been imposed. On the issue of mootness, the Merloc court sided with Narberth, noting the danger of a rationale that threatens to deprive an objector’s right to judicial review. As to the question of timeliness, the Merloc court easily distinguished Peterson. Chiefly, the present facts clearly show the existence of a mailed decision reduced to a writing. And it is the mailing of that writing which constitutes entry, not the oral pronouncement. Hence Narberth’s notice was in fact timely filed. In distinguishing Peterson, the Merloc court also managed to avoid the fray over inherent limitations with the code, mainly that it is unclear with respect to objectors. On the one hand, written notice of a decision to an “objector” is not required. In fact, an applicant may extend the time a zoning board uses to reduce its decision to a writing or even waive the requirement altogether. Yet on the other, the code only speaks to a writing communicated to an “applicant.” How can an “objector” rely upon a writing that he or she may or may not even receive? Clearly the legislature would serve the court system well to remedy this glaring deficiency and take heed from the Peterson court. HARPER J. DIMMERMAN represents clients in real estate matters and is the principal of his firm and president of DST Land Transfer, Inc., a title insurance company licensed in Pennsylvania and New Jersey. He may be reached at [email protected] or 215-545-0600. He is co-chairman of the Philadelphia Bar Association’s solo and small firm committee and an executive committee member of the law practice management committee and YLD.

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