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A Township that provided two-day written notice of a rescheduled hearing for a property owner’s appeal and variance request failed to provide adequate notice of the hearing date.
Kline v. ZHB of the Twp. of Upper Saint Clair,
903 A.2d 77 (Pa. Commw. 2006).
A property owner applied for and received approval to build a deck on his property, although the permit specifically prohibited an enclosure of the lower portion of the deck. Upon inspection by the Township, it was revealed that a prohibited enclosure had been constructed on the property, and that other zoning violations had been committed, resulting in the issuance of an enforcement notice. The property owner appealed this notice, and also applied for variances with respect to the violations. The Board set the hearing date for June 23, 2004, but the hearing was “continued” until July 28, 2004, for which the property owner received written notice on July 26. The property owner failed to appear at the July 28 hearing, in which the Board issued a decision upholding the enforcement notice and denying the variance requests. The property owner appealed to the trial court, maintaining that he did not receive proper notice of the Board’s July 28 hearing. The trial court affirmed the Board’s decision and dismissed the appeal, an order which the property owner then appealed to the Commonwealth Court.
With respect to hearings, the Municipalities Planning Code (the “MPC”) states that written notice shall be given to the applicant at such time and in such manner as shall be prescribed by ordinance. 53 P.S. Section 10908. With respect to procedures regarding a variance application, the Township’s Zoning Ordinance states that all mailings must be made no more than thirty days nor less than seven days prior to the date of the public hearing.
The Commonwealth Court held that since the property owner received notice of the public hearing only two days before the hearing was held, the notice did not comply with the Township’s Zoning Ordinance. In response to the Township’s argument that a continued hearing is not subject to the same requirements as “first-time” hearings, the Court noted that the first hearing never actually took place. Furthermore, the Court stated that the MPC requires that zoning procedures are to be strictly followed.
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