Neighbors and Objectors Be Alert: Township Does Not Lose All Jurisdiction Over a Parcel of Land When a Land Use Appeal is Filed

September 2012Articles In the Zone

In the development of real estate in Pennsylvania, it is common for neighbors and/ or residents in close proximity to a project to participate in the public process on the land development application. Parties aggrieved by a decision of a municipality may file an appeal of the decision in the local Court of Common Pleas. Once an appeal is filed with respect to a parcel of land, there is a question as to the effect of that appeal on any other development of that parcel during the pendency of the appeal.

This question was recently presented to the Commonwealth Court in the case of James DeFilippo, Jackson Realty Partners, Cameron Jones and Joseph Gray v. Cranberry Township Board of Supervisorsand Carsense, Inc. In this case, the Commonwealth Court affirmed the decision of the trial court dismissing the land use appeal of the objectors to a development approval obtained by Carsense, Inc. The case involved a 15 acre parcel of land located in the Planned Industrial/ Commercial Zoning District of Cranberry Township. Carsense, Inc. was proposing to construct an automobile sales and service center, which was permitted as a Conditional Use in the commercial district of the Township. The Carsense, Inc. proposal would require 13 waivers from the Township ordinances relating to landscaping, parking and garage door placement.

On September 29, 2010, the Township Board of Supervisors held a public hearing on the Conditional Use application of Carsense, Inc. James DeFilippo, Jackson Realty Partners, Cameron Jones and Joseph Gray (Objectors) appeared at the public hearing and stated an objection to the Carsense, Inc. proposal. Thereafter, at the Board of Supervisors meeting of November 4, 2010, the Board approved of the Carsense, Inc. proposal and granted all 13 waivers requested by the developer. The Board also granted preliminary and final subdivision approval and final approval of Phase I of the land development plan.

On December 3, 2010, Objectors filed a land use appeal in the Court of Common Pleas challenging the approval of the land development plan. During the pendency of the appeal, in January 2011, Carsense, Inc. filed a new land development plan (Plan II) and a new conditional use application with Cranberry Township. Under Plan II, Carsense, Inc. revised its proposal and, thereby, reduced the need for waivers from 13 waivers to 5 waivers. Although the appeal was pending on the initial plan (Plan I), the Township Board of Supervisors held a public hearing on Plan II on February 24, 2011, and, on April 6, 2011, granted approval of Plan II and conditional use approval for the development. In addition, the Township Board of Supervisors granted preliminary and final subdivision approval and final Phase I land development approval on Plan II.

More than two months later, on June 21, 2011, Objectors attempted to include the Township’s approval of Plan II in its initial appeal of Plan I, which was pending in the Court of Common Pleas. Objectors filed a “Supplement to Appeal” arguing that they did not become aware of Plan II or the Township’s approval until they noticed construction activity at the site. Objectors argued that the Board of Supervisors lacked authority to act on Plan II because the land use appeal of Plan I divested the Board of Supervisors of any authority to act on any Carsense, Inc. proposal until Objectors initial appeal was decided.

In response to Objectors “Supplement to Appeal,” Carsense, Inc. filed a motion to strike and dismiss as moot the land use appeal of December 3, 2010. Carsense, Inc. argued that Plan I, the plan appealed by Objectors to the Court of Common Pleas, was abandoned and replaced with Plan II. Since Objectors did not appeal the Plan II approval, Carsense, Inc. argued that there was no controversy at issue, and, therefore, the appeal was moot.

After hearing argument from the parties, the trial court granted the motion of Carsense, Inc. and dismissed Objectors’ appeal as moot. The Objectors appealed that decision to the Commonwealth Court.

In reviewing the information presented, the Commonwealth Court noted that the Objectors failed to keep themselves apprised of the land development submissions on the subject parcel and the Township actions which are matters of public record. The Objectors had an opportunity to participate in the public process and the review of Plan II, but they did not participate. The court held that a land use appeal does not stay the effectiveness of a municipality’s order, nor does it bar a property owner from considering and proposing a different land development plan or zoning application. A municipality does not lose all jurisdiction over a parcel of land when a land use appeal is filed. Carsense, Inc. obtained two approvals, and it chose to develop the plan (Plan II) that was not challenged or appealed. Therefore, the Commonwealth Court found the appeal relating to Plan I was moot, and it upheld the decision of the trial court dismissing that appeal.