Falkler v. Lower Windsor Twp. Zoning Hearing Bd., 988 A.2d 764 (Pa. Commw. Ct. 2010).
Void ab inito doctrine does not apply to the issuance of a certificate of nonconformity.
The Zoning Officer issued Applicant a Certificate of Non-Conformance even though Applicant requested the Certificate more than one year after the use became non-conforming. A neighbor became aware of the certificate six months after it was issued and appealed the issuance of the certificate to the Zoning Hearing Board six weeks later. The Zoning Hearing Board denied the appeal, determining it was without jurisdiction because the neighbor’s appeal was filed too late.
The neighbor first argued that the certificate as void ab initiorelying on Schadler v. Zoning Hearing Bd. of Weisen Bert Twp., 850 A.2d 619 (permitting a “late” appeal because an ordinance was not valid from the start), and Luke v. Cataldi, 932 A.2d 45 (permitting a “late” appeal because a conditional use permit was procedurally defective and not valid from the start). The Court determined that the void ab initio doctrine was inapplicable to the certificate because a third case, Glen Gery v. Zoning Hearing Bd. of Dover Twp., 907 A.2d 1033, limited the application of the doctrine to cases in which public hearings and notices were required.
The neighbor also argued that the certificate was invalid because it was issued more than a year after the nonconformity arose. The Court looked to the zoning ordinance and determined that the ordinance contained permissive, as opposed to mandatory, language with regard to when a certificate must be sought. As a result, there was no defect.
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