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Under MPC Section 1002-A, only public notice--not actual knowledge--begins the appeal period for a deemed approval.
Magyar v. Lewis Twp. Zoning Hearing Board,
885 A.2d 123 (Pa. Cmwlth. 2005).
Landowner submitted an application for special exception to build a school bus garage in a residential zone. Township’s zoning hearing board did not hold a hearing on the application within 60 days as required by MPC Section 908(1.2). Notwithstanding the timeliness of the matter, the zoning hearing board held a hearing, rejected landowner’s argument that the application was deemed approved, and denied the application on its merits. Neither the zoning hearing board nor the landowner published a deemed approval notice pursuant to Section 908(9); however, landowner brought a land use appeal to the court of common pleas arguing that the board erred by not recognizing a deemed approval of its application. The trial court agreed.
After the trial court’s decision that the application was deemed approved by the zoning hearing board, neighbors of the landowner appealed the (deemed) approval pursuant to Section 1002-A, which states, “in the case of a deemed decision, [an appeal shall be filed] within 30 days after the date upon which notice of said deemed decision is given.” The trial court quashed the appeal as premature because no deemed approval notice had issued.
Landowners appealed to the Commonwealth Court, arguing, among other things, 1) neighbors’ appeal was untimely because neighbors had actual knowledge of the deemed approval on the date the landowners first argued to the zoning hearing board that their application was deemed approved; and 2) the court order recognizing a deemed approval constituted public notice of such deemed approval.
The Commonwealth Court disagreed with the landowners on both arguments and affirmed. First, the Court found that Section 1002-A contains no “actual knowledge” requirement and that the appeal period is only triggered by public notice. As such, the specific language in Section 1002-A governed over the general language (to the contrary) under the Judicial Code, Section 5571(c)(6). Second, it held that a trial court order recognizing a deemed approval does not obviate the need for public notice of such approval.
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