Appellate Procedure

Coppola v. Smith Twp. Bd. of Supervisors

If an individual submits a letter of objections regarding a land use application and the letter is not read into the record at the land use hearing, the individual generally cannot appeal the decision unless the individual acted in good faith and complied with the board’s rules. If the individual acted in good faith and complied with the board’s rules, it is proper practice to remand the board’s decision for an additional hearing where all parties can contest or answer the objections.

Coppola v. Smith Twp. Bd. of Supervisors, 2019 Pa. Commw. LEXIS 405 (May 2, 2019)

Date of Decision: 5/2/19

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Friends of Lackawanna v. Dunmore Borough Zoning Hearing Board, Pa. Commw. (2018)

A property owner has standing to object to a land use decision if he or she has a substantial, direct and immediate interest in the decision. An association has standing, “even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged.” In addition, a notice of land use appeal should not be dismissed for not being concise, pursuant to Section 1003-A(a) of the Pennsylvania Municipalities Planning Code, where its factual background section is voluminous but it still clearly and concisely sets forth the grounds on which the appeal is based.

Friends of Lackawanna v. Dunmore Borough Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 157 (May 7, 2018)

Date of Decision: 5/7/18

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SBA Towers IX, LLC v. Unity Township Zoning Hearing Board, Pa. Commw. (2018)

In certain circumstances, the holder of an option to lease is a “landowner” with standing to be an applicant for zoning approvals and relief. A person may intervene in a land use appeal at the court’s discretion where such person is “situated as to be adversely affected” by a decision of the court. Where it is claimed that an applicant did not make a good faith effort to find towers for collocation of antennas, comments by an objector’s attorney that other towers existed for collocation and that applicant did not analyze them are insufficient evidence that the applicant failed to act in good faith. For purposes of zoning approvals or relief where an ordinance requires that the applicant be licensed by the Federal Communications Commission (FCC), a licensed issued by the FCC for the party that will use the tower but that is not the applicant is not sufficient to prove the applicant is licensed by the FCC. Where an ordinance requires an applicant to demonstrate that a proposed tower or antenna comply with FCC standards governing human exposure to electromagnetic radiation, a conclusory letter from an employee associated with an applicant is insufficient evidence of compliance. Where the purpose of an application for a telecommunications tower and antennas is to fill a coverage gap, if expert testimony establishes that the antenna must be at a certain height to fill the coverage gap, evidence form objectors that a tower of the height required is unsafe from some other perspective (e.g., flight paths for planes) does not refute the evidence provided.

SBA Towers IX, LLC v. Unity Twp. Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 70

Date of Decision: 2/16/18

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Appeal of Chester County Outdoor, LLC, Pa. Commw., (2017)

Where a proposal is not appended to a validity challenge of a zoning ordinance, the one-year time limitation to file for a building permit under Section 10916(g) of the Pennsylvania Municipalities Planning Code (MPC) is not applicable. Further, a trial court does not have jurisdiction to grant site specific relief if the developer did not first file an appropriate application with the local municipality. Finally, while a developer must first submit its request for site specific relief to a municipality, the trial court is the ultimate decision maker and has broad discretion as to its review of the record and additional evidence.

Appeal of Chester County Outdoor, LLC, 64 A.3d 1148 (Pa. Commw. Ct. 2013).

Appeal of Chester Cty. Outdoor, LLC, 167 A.3d 280 (Pa. Commw. Ct. 2017), aff’d. Appeal of Chester Cty. Outdoor, LLC, 2018 Pa. LEXIS 545.

Date of Decision: 7/28/17

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Pennypacker v. Ferguson Township, Pa. Commw. (2017)

The Pennsylvania Municipalities Planning Code (MPC) permits planned residential developments (PRD) as a means of “approving large developments which override[ ] traditional zoning controls and permit[ ] the introduction of flexibility into the design of larger developments." Appeals from final plan approval of a PRD where an appeal from tentative plan approval was not taken are generally prohibited. When appealing, appellant must state the grounds for appeal in the notice of appeal and unstated claims are waived.

Pennypacker v. Ferguson Twp., 167 A.3d 209 (Pa. Commw. Ct. 2017)

Date of Decision: 5/17/17

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Pendle Hill v. Zoning Hearing Board of Nether Providence Township, Pa. Commw. (2016)

Petitions to intervene after entry of a decree may be approved in extraordinary circumstances. In addition, “extraordinary circumstances” refers to an oversight or action on the part of the court or where the judicial process results in the losing party’s lack of knowledge of the entry of final judgment, so that the commencement of the running of the appeal time is not known to the party.

Pendle Hill v. Zoning Hearing Bd. of Nether Providence Twp., 134 A.3d 1187 (Pa. Commw. Ct. 2016)

Date of Decision: 3/10/16

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Hionis v. Concord Township, Pa. Commw. (2009)

A plaintiff may seek review of an interlocutory order granting preliminary objections but providing the ability to file an amended pleading, by waiting until the time period for amendment expires and petitioning the lower court for an order dismissing the complaint.

Hionis v. Concord Township, No. 1771 C.D. 2008 (Pa. Commw. 2009).

Date of Decision: 5/11/09

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Commonwealth v. East Brunswick Township, Pa. Commw., (2009)

The Attorney General had standing to bring an action, at the request of a citizen, in original jurisdiction in the Commonwealth Court against the Township for an alleged “unauthorized local ordinance” under the Agricultural, Communities and Rural Environment Act (“Act 38”). The Court found that Act 38 was constitutional; however, the Court denied summary relief because it was unclear whether the application of sewage sludge was a normal agricultural operation.

Commonwealth v. East Brunswick Township, 956 A.2d 1100(Pa. Cmwlth. 2008).

Commonwealth v. East Brunswick Twp., 980 A.2d 720 (Pa. Commw. Ct. 2009).

Date of Decision: 9/23/08

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