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Berryman v. Wyoming Borough Zoning Hearing Board,
884 A.2d 386 (Pa. Cmwlth. 2005)
Landowners obtained a building permit and immediately began constructing a pole barn; however, the proposed structure did not conform to zoning requirements and landowners did not obtain a zoning permit. There was no formal public notice of the issuance of the building permit.
Objectors owned property near the subject property, but lived out of town. Objectors appealed to the zoning hearing board forty-one days after the building permit issued. Landowners challenged the appeal as untimely. Objectors argued that, absent formal notice, the thirty-day appeal period prescribed by MPC Section 914.1(a) is tolled until one has actual notice of the issuance of the permit. Objectors responded that their appeal was timely because they filed their appeal within thirty days of discovering that the Landowner's had begun construction. The ZHB agreed and heard Objectors' appeal on its merits. Landowners appealed to the court of common pleas the ZHB's decision with respect to the timeliness of Objector's appeal.
The Court of Common pleas reversed the ZHB, reasoning that the appeal period began when construction of the pole barn became visible to the general public, not when Objector's themselves discovered the construction. Here, the evidence supported the conclusion that the pole barn became visible from a public street thirty-seven days before Objector's appeal. Objector's appealed to the Commonwealth Court.
The Commonwealth Court affirmed. The Court concluded the MPC does not require actual notice of the issuance of a permit for the appeal period to begin. Rather, "the standard is ultimately an objective one" and, absent actual notice, "the event which begins the appeal period is a circumstance which would give a person reason to believe that approval had been given." The Court expressly rejected any special treatment for an absentee property owner and suggested that such owners take reasonable measures to assure that they are informed about activities in their absence.
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