Magyar v. ZONING HEARING BD. OF LEWIS TP.

885 A.2d 123
CourtCommonwealth Court of Pennsylvania
DecidedOctober 21, 2005
StatusPublished

This text of 885 A.2d 123 (Magyar v. ZONING HEARING BD. OF LEWIS TP.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Magyar v. ZONING HEARING BD. OF LEWIS TP., 885 A.2d 123 (Pa. Ct. App. 2005).

Opinion

885 A.2d 123 (2005)

Christopher P. MAGYAR and Christine M. Magyar, husband and wife
v.
The ZONING HEARING BOARD OF LEWIS TOWNSHIP
v.
Willard F. Murray, and Linda D. Murray, husband and wife
v.
Lewis Township
Appeal of: Willard F. Murray and Linda D. Murray, husband and wife.

Commonwealth Court of Pennsylvania.

Argued September 15, 2005.
Decided October 21, 2005.

*124 Melissa S. Lobos, Mifflinburg, for appellants.

Roger V. Wiest, II, Sunbury, for appellees, Christopher P. Magyar and Christine M. Magyar.

Joel M. Wiest, Sunbury, for appellee, Lewis Township.

BEFORE: LEADBETTER, Judge, SIMPSON, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge SIMPSON.

In this procedurally unusual zoning case, we must decide when the appeal period from a deemed approval begins. Willard and Linda Murray (Applicants) seek review of an order of the Court of Common Pleas of Northumberland County (trial court) that quashed another party's appeal from a deemed approval of their application, but did so with reasoning that allowed a later appeal. The trial court determined the appeal was premature because neither the Zoning Hearing Board of Lewis Township (Board) nor Applicants provided public notice of the deemed approval as required by statute, and, as a result, the appeal period was never triggered. Discerning no error, we affirm.

Applicants own property located at 90 East Second Street, Lewis Township, Northumberland County (Subject Property), which they currently use as their residence. The Subject Property is zoned R-1 residential.

In October 2002, Applicants submitted an application to the Township's zoning officer seeking a special exception for a home occupation involving the erection of a garage to house school buses.

The Board scheduled the first hearing on Applicants' application in January 2003, but continued the hearing because the *125 Subject Property was not properly posted.[1] Before the Board, Applicants asserted their special exception request was deemed approved because the Board did not conduct the first hearing on the application within 60 days as required by Section 908(1.2) of the Pennsylvania Municipalities Planning Code (MPC).[2]

In May 2003, the Board issued a decision rejecting Applicants' assertion that they were entitled to a deemed approval. The Board also rejected Applicants' special exception request on the merits. Applicants appealed to the trial court, asserting the Board erred in denying the deemed approval.

Following a hearing, the trial court issued an opinion in which it determined the Board's failure to conduct a timely hearing on Applicants' application resulted in a deemed approval.

In response to the special exception the Board was deemed to grant, new neighbors Christopher and Christine Magyar (Objectors) appealed to the trial court, seeking denial of the application on the merits.[3]

Before the trial court, Applicants filed a motion to quash Objectors' appeal of the deemed approval. They asserted Objectors lacked standing. The trial court denied Applicants' motion to quash, stating Objectors, as neighbors of the Subject Property, had standing to appeal, and the occurrence of the deemed approval did not preclude an appeal on the merits.

Applicants sought reconsideration based on additional evidence (the date Objectors entered into an agreement to purchase the adjoining property) and based on a claim the prior ruling was erroneous.[4] The trial court subsequently issued an order directing the parties to submit a stipulation limited to those facts necessary to determine whether Objectors had standing to appeal.

Thereafter, the trial court issued an opinion in which it addressed a jurisdictional issue not raised by the parties. The trial court framed the issue as follows: "[t]he question raised ... is whether [Objectors'] appeal was timely or even premature. In order to answer this question, one must define what event in a `deemed approval' situation triggers the running of the period within which an appeal may be taken to this Court." Tr. Ct., Slip Op. at 3 (footnote omitted).

Responding to this issue, the trial court first observed, pursuant to Sections 908(9) and 1002-A of the MPC,[5] the 30-day period within which to appeal a deemed approval *126 begins to run on the date public notice of the deemed approval is given by the zoning hearing board or the applicant. See Peterson v. Amity Twp. Bd. of Supervisors, 804 A.2d 723 (Pa.Cmwlth.2002). The trial court determined neither the Board nor Applicants gave the required notice. Thus, the trial court explained:

Here, based upon the representations of counsel, no such notice has ever been given by either [Applicants] or the [Board]. Until the [Subject Property] is posted by [Applicants] or the [Board] in accord with [S]ection 908(9), there is no public notice of the intent of [Applicants] to claim a deemed approval and that they are acting on it. There has not been a triggering event, as required by the MPC and by Peterson, from which an aggrieved party has notice that it must now act by timely seeking this Court's review.... The [o]rder of this Court [granting the deemed approval] was helpful to [Applicants] as a final determination that they were entitled to assert a deemed approval; however, the record does not show [Applicants] ever acted upon it by providing [the required notice]. Accordingly, this appeal by [Objectors] is premature.... [T]his Court must treat a premature appeal as being just as improper as an untimely one—a nullity that defeats the jurisdiction of this Court to consider the matter further.
[Applicants] cannot simply begin using [the Subject Property] as contemplated in their petition for special exception without first providing notice, as required by the MPC, of the deemed approval. If such notice is given, the time for any appeal would then begin running. Of course, no zoning permits should be issued based upon a deemed approval until the [Subject Property] is properly posted and the thirty-day appeal period therefrom has expired. This would allow for any aggrieved property owner to file an appeal, which at that time would no longer be premature.

Tr. Ct., Slip Op. at 4-5 (footnotes and citations omitted). Consequently, the trial court quashed Objectors' appeal as premature. The practical result of the ruling was that Objectors could refile their appeal from the deemed approval after proper notice.

On Applicants' appeal to this Court,[6] they assert the trial court erred in: (i) failing to quash Objectors' appeal as late rather than premature; (ii) failing to hear testimony as to when Objectors had actual knowledge of Applicants' claim to a deemed approval; and (iii) requiring Applicants to provide public notice of the trial court's decision that a deemed approval occurred.

I.

Applicants first assert the trial court erred in failing to quash Objectors' appeal as late (and therefore not capable of refilling) rather than premature (and therefore susceptible to refilling) because Objectors did not appeal within 30 days of the Board's actual decision denying the special exception. They contend Objectors should have filed a precautionary appeal because the issue of whether a deemed approval occurred was raised before the Board.

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Mountain Protection Alliance v. Fayette County Zoning Hearing Board
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Peterson v. Amity Township Board of Supervisors
804 A.2d 723 (Commonwealth Court of Pennsylvania, 2002)
Wm. Penn Parking Garage, Inc. v. City of Pittsburgh
346 A.2d 269 (Supreme Court of Pennsylvania, 1975)
Snyder v. Zoning Hearing Board
782 A.2d 1088 (Commonwealth Court of Pennsylvania, 2001)
Magyar v. Zoning Hearing Board of Lewis Township
885 A.2d 123 (Commonwealth Court of Pennsylvania, 2005)
Snyder v. Zoning Hearing Board
810 A.2d 636 (Supreme Court of Pennsylvania, 2002)
Appeal of Foltz
349 A.2d 918 (Commonwealth Court of Pennsylvania, 1976)
Wingerden v. Kallatch
508 A.2d 1295 (Commonwealth Court of Pennsylvania, 1986)

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Bluebook (online)
885 A.2d 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magyar-v-zoning-hearing-bd-of-lewis-tp-pacommwct-2005.