In re: Appeal of Deemed Approved Conditional Use, 975 A.2d 1193 (Pa. Commw. 2009).

A neighboring landowner successfully challenged a conditional use permit – granted by deemed approval based on the municipality’s failure to issue a written decision – as the permit was improper where the proposed use was prohibited by the applicable zoning ordinance and the landowners failed to obtain seven necessary variances prior to filing their application for conditional use permit.
Case Details:

Landowners Paul and Deborah Becker sought a conditional use approval under the municipality’s zoning and building codes for the construction of storage sheds on their property located in a floodplain.  The Borough Council voted to deny the request for conditional use, but failed to issue a written ruling as required by the MPC.  As a result, the Beckers published a notice of a deemed approval.  Adjacent property owner Richard Sterner, maintaining that his property would be substantially and adversely impacted by the alleged deemed approval, filed a Notice of Conditional Use Appeal and Petition for Review with the Common Pleas Court.  The Beckers filed preliminary objections challenging Sterner’s appeal.  The Common Pleas Court overruled the preliminary objections, but it denied Sterner’s appeal.  The Court reviewed the record developed before Borough Council and found that because the proposed construction would have a negligible effect on the floodplain, the conditional use should have been granted.  Sterner appealed this decision.

The first issue considered by the Commonwealth Court was whether the Common Pleas Court erred in permitting the Borough to intervene in the appeal, as the Beckers argued that the Borough lacked standing to intervene in, or appeal from, a deemed approval of a conditional use application.  The Commonwealth Court, based on prior rulings, found that this was not error, as a municipality may intervene in an appeal.  The Court then considered whether the Common Pleas Court erred in holding a conditional use permit was properly granted.

The Commonwealth Court considered the two challenges raised by the adjacent property owner, that the landowners were not entitled to a conditional use permit because they lacked necessary variances and the proposed use was not permitted, but specifically prohibited, in the 100-year floodplain.  The Court reversed the Trial Court decision and denied the conditional use, finding that the proposed use was expressly prohibited by the applicable ordinance.  It further found that he conditional use permit was improper because seven variances from various zoning mandates were required, but the landowners failed to secure these variances before seeking the conditional use permit.  Therefore, the Court granted Sterner’s appeal and petition for review finding that the Beckers were not entitled to a conditional use permit.

Date of Decision: 5/19/09

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