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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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