Agenda - Planning Commission - 09/05/2013

Home

August 10, 2013 I Volume 7 I Issue 15 Zoning Bulletin of its obligation to inform a party of the mailing date or otherwise notify a party of the commencement of the appeal period for a zoning decision. The case also addressed the issues of: whether a town zoning board was required to notify the landowner/applicant of the date of commencement of the appeal period for a zoning decision by notifying the landowner/ applicant of the actual mailing date of the Board's zoning decision; and whether the Board's failure to provide such notice required the 30-day ap- peal period be calculated from the date of receipt of the zoning decision by the landowner/applicant. The Background/Facts: John F. Schmader, Jr. ("Schmader") owned property in Cranberry Township, Pennsylvania (the "Township"). The property was located in an R-1 Residential Zone. At the property, Schmader operated a commercial office. In October 2011, Schmader received two zoning enforcement orders stating that he was in violation of the Township's Code because he was operating a business on the property, which was not a permitted use or a use allowed by special exception or conditional use in the R-1 district. Schmader was ordered to cease operation of his business on the property. Schmader appealed to the Township Zoning Hearing Board (the "Board"). In a decision dated March 30, 2012 (the "Board's Decision"), the Board denied Schmader's appeal. It concluded that he was operating a commercial business, which was not permitted by right, special excep- tion, or conditional use in a residential district. The Board also concluded that Schmader had not sought or been granted permission by the Town- ship to conduct his business on the property. The Board's Decision was not accompanied by a transmittal letter or any other document stating the mailing date, or a document notifying Schmader of the commencement of the appeal period. Schmader received the Board's Decision on April 3, 2012, and filed an appeal in the common pleas court on May 2, 2012. The Cranberry Town- ship Board of Supervisors (the Township) intervened and, along with the Board, filed a joint motion to quash the appeal. They asserted that Schmader's appeal was untimely. They argued that pursuant to § 5572 of the Judicial Code (as amended 42 Pa.C.S. § 5572) and § 1002-A(a) of the Pennsylvania Municipalities Planning Code (MPC) (as amended, 53 P.S. § 11002-A(a)), Schmader was required to file an appeal within 30 days of the March 30, 2011 mailing date of the Board's Decision. Schmader argued that since the Board failed to notify him of the date of the mailing, the appeal period began on the date of actual notice — April 3, 2012, when he received the Board's Decision. As such, he contended that his appeal was timely filed. The Court of Common Pleas quashed Schmader's appeal. It pointed to a recent amendment to § 1002-A(a) of the Planning Code. That amend- ment provided that the 30-day appeal period should apply to all cases un- less an unconstitutional deprivation of due process would result. The 10 ©2013 Thomson Reuters