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BUILDING PERMIT - NOTICE
Rabenold v. ZHB of the Borough of Palmerton, Pa. Commw. (June
5, 2001)
Cite: 777 A.2d 1257
Note: Distinguished by Residents Against Matrix, 802 A.2d 712 Even though a building had been completed and the appeal was filed
approximately one year after the building permit was issued, an appeal
was held to be timely. The notice posted on the property had only identified
renovation of the funeral home and did not provide notice of additional
construction. The court held that the notice was inadequate and the
30-day appeal period did not begin to run until the neighbors had notice
of the permit for the crematory. Thus, the landowners did not establish
a vested right in the permit. The building permit was, however, upheld
because the crematory was determined to be a permitted use in the subject
zoning district.
Commentary:
This case re-inforces the importance of compliance with "technical"
aspects of MPC notice requirements. The Court made it clear that notices
required under the MPC must include sufficient specificity to alert
affected
parties as to the issues to be considered. Here the court found that
the
posting of an official "Notice" of issuance of a building
permit to "Partly
Demolish and Reconstruct" a building at a certain address did not
give
sufficient notice of the proposed nature of the reconstruction ( for
a
crematorium). Because the notice was deemed insufficient, the 30 day
appeal
period for the issuance of the building permit did not begin to run
until
the neighbor/protestant received actual notice of the use of the new
construction (almost a year after issuance of the permit).
The Court also reiterated the five-part standard, previously adopted
by
the court as a pre-requisite to establishing a vested right in a permit:
1. Due diligence in attempting to comply with the law.
2. Good faith throughout the proceedings.
3. The expenditure of substantial unrecoverable funds.
4. The expiration, without appeal, of the period during which an appeal
could have been taken from the issuance of a permit.
5. The insufficiency of the evidence to prove that individual property
rights or the public health, safety or welfare would be adversely affected
by the use of the permit.
Here, the court found that the 4th threashold was not met mecause
the
appeal period was extended to 30 days from the date of "actual"
notice.
(See: Department of Environmental Resources v. Flynn, 21 Pa. Cmwlth.
264,
344 A 2d 720 (1975)
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