PA Commonwealth Court Upholds Revocation of Zoning Permit, Finding No Vested Rights Where Valid Appeal Is Filed More Than 30 Days Following Issuance of Permit

June 2011Newsletters In the Zone

The case of In Re: Appeal of Broad Mountain Development Co., 2011 WL 768655 (Pa. Commw. Mar. 7, 2011) underscores the importance of timely public notice of the issuance of zoning and building permits. Doing so assures the permit holder of the date on which the appeal period for the permit runs and secures the holder’s rights in the permit.

In this case, the developer sought to develop a wind turbine project in the Woodland Conservation zoning district of Butler Township, Schuylkill County. The developer met with the township zoning officer and described the proposed project, which would consist of the erection of 20 to 28 wind turbines on approximately 11 acres of land. At the meeting, it was clear the wind turbines would exceed the maximum height permitted in the Woodland Conservation district. Despite the fact the township zoning ordinance did not permit the wind turbine use in any zoning district, the zoning officer approved the zoning permit application, specifically noting a “wind energy facility is an allowable activity in a Woodland Conservation Zoning District.”

Four months after the permit was issued, the developer erected a meteorological tower, approximately 60 meters high, on the property for the compilation of wind data as part of a feasibility study for the construction of the wind turbines. Eight months after erection of the tower and more than a year after issuance of the zoning permit, the developer filed a preliminary land development application and plan for the project, which was revised and resubmitted twice after receiving comments from the township engineer.

Three months after the preliminary plan application was submitted and 15 months after the zoning permit was issued, neighboring landowners filed an appeal of the permit with the township zoning hearing board. Hearings were held, at which conclusion the board revoked the zoning permit, reasoning that (1) the developer failed to timely construct the wind turbines within the six-month permit expiration period; (2) the zoning permit did not grant any zoning relief other than relief from the height limitations; and (3) windmill farms are not permitted uses in the Woodland Conservation district.

The developer appealed to the trial court, which concluded the board properly revoked the zoning permit because the zoning officer had no authority to issue a permit for a wind farm in a Woodland Conservation zoning district. The developer then appealed to the Commonwealth Court, arguing it had a vested right in the zoning permit and, therefore, the trial court erred in affirming the board’s revocation of the permit. In addition, the developer argued the neighboring landowner’s appeal of the permit was not timely filed.

The Commonwealth Court first noted that both the township zoning ordinance and Section 914.1(a) of the Pennsylvania Municipalities Planning Code provide that no person shall be permitted to file any proceeding with the zoning hearing board more than 30 days following approval of an application if such proceeding is designed to secure reversal or limit the approval “unless such person alleges and proves that he had no notice, knowledge or reason to believe that such approval had been given.” Therefore, where an objector proves he or she lacked notice of the issuance of a permit, the 30-day appeal period is tolled until the objector possesses knowledge or a reason to believe the approval was granted.

The developer argued the board and trial court focused on when the landowners first learned of the issuance of the permit rather than when the landowners had reason to believethat such approval had been given, claiming the intervenors had constructive notice of the issuance of the zoning permit when the meteorological tower was constructed, because that construction provided notice of some form of use not consistent with the narrowly restricted uses permitted in the Woodland Conservation district. The developer also argued newspaper articles and Board of Supervisors and Planning Commission meetings related to the land development plans also provided constructive notice of the issuance of the permit. The Commonwealth Court rejected all of the developer’s arguments, noting the developer did not point to any evidence suggesting the issuance of the permit was revealed at any meeting prior to a May 11, 2009, Planning Commission meeting, which is the date the court determined the intervenors had notice of the issuance of the permit. The court noted it would be extreme to give credence to the developer’s argument that the construction of the meteorological tower on 1,100 acres, which tower does not bear resemblance to a windmill turbine, and minor land clearing would provide the public with notice that a zoning permit was granted for the placement of 27 wind turbines.

Finally, as to the developer’s vested rights argument, the court began by noting that, generally, a municipal permit issued illegally or in violation of the law, or under a mistake of fact, confers no vested right or privilege on the person to whom the permit has been issued, and it may be revoked notwithstanding the person may have acted on the permit. In determining whether vested rights exist, five factors must be considered: (1) due diligence in attempting to comply with the law; (2) good faith throughout the proceedings; (3) the expenditure of substantial unrecoverable funds; (4) the expiration without appeal of the period during which an appeal could have been taken from the issuance of a permit; and (5) the insufficiency of evidence to prove that individual property rights or the public health, safety or welfare would be adversely affected by the use of the permit. Because the court already determined the intervenors timely filed an appeal, the court found the developer did not have a valid claim for vested rights.

This case serves as a lesson for all that it is very important the public be notified in an appropriate manner of the issuance of zoning and building permits so that the permit holder may have assurance as to the date on which the appeal period for the permit runs, thereby securing the permit holder’s rights in such a permit.

For more information, please contact Kimberly A. Freimuth at 215.918.3627 or [email protected].

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