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A conditional use permit cannot be challenged on a procedural basis more than thirty days after its approval.
Luke v. Cataldi,
883 A.2d 1114 (Pa. Cmwlth. 2005), app. granted.
A mining company applied for a conditional use permit that would allow it to engage in certain coal mining activities. The township supervisors approved the application. Over one year after the permit was approved, township residents challenged the permit and requested a mandamus from the trial court ordering the supervisors to hold new public hearings on the permit and to enjoin further mining activities pending the outcome of the new hearings.
The challengers alleged that the conditional use permit was void ab initio (from the beginning) for procedural reasons, including the supervisors’ failure to advertise and hold a public hearing on the matter. In response, the supervisors argued that the mandamus request should be denied because the request was in essence a land use appeal that should be governed by the MPC, which, under Section 1002-A, requires that appeals of all land use decisions be appealed within thirty days. The trial court agreed and denied the residents request.
After the Commonwealth Court affirmed the decision, the challengers appealed to the Supreme Court, which remanded the decision to the Commonwealth Court to reconsider the case in light of the Supreme Court’s (then recent) Schadler decision (ruling that a procedural defect in the enactment of an ordinance rendered the ordinance void ab initio and allowed appeals to be taken more than thirty days after adoption).
On remand, over a strong dissent, the Commonwealth Court found that Schadler had no effect on the outcome because “One cannot compare the enactment of an ordinance, governed by the Second Class Township Code, to the grant of a land use permit, a quasi-judicial act governed exclusively by the MPC.” Accordingly, having distinguished the facts in this case from those in Schadler, the Commonwealth Court denied relief to the challengers.
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