Moy v. Monroeville Zoning Hearing Board, 912 A.2d 373 (Pa. Cmwlth. 2006).
A non-public amendment to a building permit can be misleading and the 30-day appeal period of such amendment does not begin until public notice of the amended permit issues.
A restaurant owner received a building permit to build a deck. Soon thereafter, Objector, a neighbor, noticed that a commercial addition of approximately 555 square feet was being constructed in addition to the permitted deck. The building permit was amended after the fact to reflect this addition–but no new permit issued.
On June 2, 2004, the Zoning Officer drafted an internal memorandum concluding that Site Plan approval was not needed for the addition because it was “accessory and incidental to the principal use of the building.” Objector received the file around June 7 and noticed that the application had been amended. On June 30, the municipality issued a Certificate of Occupancy. On July 15, Objector received a letter explaining that a site plan was not required because the addition did not significantly alter the site. On August 13, 2004, Objector filed a notice of appeal to the Zoning Hearing Board (ZHB).
The ZHB determined that the operative date for appeal purposes was the date Objector received the letter. Since the appeal was filed within 30 days of receipt of the letter, the appeal was timely. In addition, it concluded that a site plan for the addition was required. The Trial Court affirmed.
On appeal, the Commonwealth Court stated that Section 914.1(a) of the MPC requires an appeal to be filed “no later than 30 days after an application . . . has been approved . . . unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval has been given.” Appellant argued that Objector had notice either when he observed construction or, at the latest, when he saw the amended permit on June 7, 2004. The Court disagreed because, when Objector saw the construction, there was no permit to appeal from. In addition, the Court opined, the amended application was misleading and could not be construed to have provided notice. It was not until the July 15 letter that Objector knew that there was a constructive approval of the addition. Therefore, the appeal was timely.
Substantively, the Court also affirmed the ZHB’s decision that the enlargement of the primary structure did not constitute an “accessory use.”
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