Timely Appeals Critical With Conditional Deadlines

September 2010Newsletters In the Zone

Dietrich v. Buffalo Tp. Planning Com’n, 995 A.2d 893, Pa.Cmwlth., May 18, 2010 (No. 683 C.D. 2009)

In this case, the applicant submitted an application to build a swine barn on their property. The proposed barn would consist of 69,500 square feet and house 8,800 swine. The applicant subsequently revised their plans in response to the comments of the township engineer. At its September 29, 2008, meeting, the Township Planning Commission voted to grant conditional approval of the plan.1 By letter dated October 8, 2008, the Commission notified the applicant of its decision and gave them until October 29, 2008, to accept the five conditions outlined in the letter, stating “failure to do so will nullify this conditional approval on October 29, 2008.” On October 16, 2008, the applicant sent the Commission a written response stating they had no objection to the first four conditions but they believed the fifth condition was unreasonably vague and arbitrary. This condition stated “resolve safety issues concerning Baker Hollow Road and Snake Hill Road to the satisfaction of the Township Supervisors.”

The Township Planning Commission did not respond to the applicant’s request for further clarification of condition number five, but instead, at its next meeting on October 27, 2008, voted to deny approval of the plan for multiple reasons. On October 29, 2008, the deadline for acceptance of the conditions, the applicant filed a land use appeal challenging the legality of condition number five as arbitrary, unreasonably, unsupported by substantial evidence and not calculated to effectuate a legitimate purpose of the ordinance. Thereafter, on October 30, 2008, the Commission issued a written decision denying approval of the plan citing multiple reasons. On October 26, 2008, the applicant filed a second appeal challenging the Commission’s written denial, specifically claiming the Commission had no authority to deny approval of the plan before the deadline for acceptance of the initial conditions and the specific deficiencies cited in the denial letter had not been raised as part of the conditional approval.

On appeal, the trial court deemed the first appeal as moot and affirmed the Township Planning Commission’s denial of the plan by concluding such denial was supported by substantial evidence.

On appeal to the Commonwealth Court, the applicant argued the trial court incorrectly deemed their first appeal moot and, thus, erred in failing to consider the first appeal on its merits.2

In response, the court concluded the applicant acted properly in filing an appeal from the conditional approval and the first appeal was not rendered moot by the Commission’s subsequent written denial of the plan. In fact, the Commonwealth Court found the Commission acted in bad faith in issuing its denial under the circumstances, citing to Highway Materials, Inc. v. Board of Supervisors of Whitemarsh Township, 974 A.2d 539 (Pa.Cmwlth. 2009).

Because the applicant filed a timely appeal from the conditional approval before the Township Planning Commission issued its written denial, the trial court had jurisdiction to consider the merits of that appeal and should have done so. Accordingly, the Commonwealth Court vacated the trial court’s order and remanded the case back to the trial court for consideration of the applicant’s first appeal on its merits.

Upon receipt of a conditional deadline, which contains a deadline for acceptance of the conditions, it is important for an applicant who does not agree with one or more of the conditions and cannot timely resolve them with the governing body to appeal that decision before the expiration set forth in the decision for the acceptance of the conditions. Query how the court would handle a case where the governing body grants a conditional approval with (1) a statement that if the applicant did not agree to the conditions the plan would be deemed denied, and (2) a detailed summary as to the reasons for denial.

For more information, please contact Robert W. Gundlach, Jr. at 215.918.3636 or [email protected].


1 - The deadline to render a decision on the pending land development application was scheduled to expire on September 29, 2008.

2 - In their brief, the Dietrichs also raise the follow two issues: (1) If the trial court is correct that the Dietrichs’ October 16, 2008, letter nullified the BTPC’s conditional approval of the Plan, are the Dietrichs entitled to a deemed approval since the BTPC failed to issue a decision within 90 days after submission of the Plan? (2) Even if the trial court were procedurally correct in
addressing only the Dietrichs’ Second Appeal, did the trial court err in upholding the BTPC’s denial of the Plan based on alleged deficiencies that were unsupported by substantial evidence?
(See Dietrichs’ Brief at 4.) Because we conclude that the Dietrichs’ first claim has merit, we need not address these remaining issues.