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Where an applicant makes both a variance request and a validity challenge in a single application and presents evidence regarding both in its case-in-chief, the 100 day requirement in section 908(9) of the Municipal Planning Code (MPC) does not apply.
Southeastern Chester County Refuse Auth. v. Zoning Hearing Bd. of London Grove Township, 898 A.2d 680 (Pa. Cmwlth. 2006).
SECCRA is a municipal authority that operates a landfill in London Grove Township on eighty acres in the Township’s Industrial Special Use Zone. At the time of suit, the landfill did not conform to two Township zoning ordinances which required a perimeter setback of 200 feet and a maximum height requirement of forty feet. SECCRA challenged the validity of the ordinances arguing that the requirements were void for vagueness, lacked any basis in reason, were a result of poor planning and ostensibly prohibited SECCRA from using its property for a landfill. Coupled with the validity challenge was an application for a variance. SECCRA wanted to expand its landfill on adjacent properties and proposed a 100 foot setback with a maximum height of 140 feet for the new portions of the landfill.
The ZHB upheld the validity of the zoning ordinance and denied SECCRA’s variance request. The ZHB rejected SECCRA’s argument that the DEP regulations (which permitted a 100 foot perimeter setback) preempted the local ordinances. Furthermore, the ZHB rejected SECCRA’s argument that since the variance application was not contested within 100 days it was deemed approved. The ZHB reasoned that because the variance application was coupled with a validity challenge, it was outside the scope of the 100 day requirement, which only applied to variance proceedings. SECCRA appealed to the trial court, which affirmed. SECCRA then appealed to the Commonwealth Court.
The Commonwealth Court affirmed and adopted the rationale of the (ZHB). When an applicant makes both a variance request and a validity challenge in a single application and presents evidence relating to both in its case-in chief, the 100-day requirement in section 908(9) of the MPC does not apply.
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