Municipal Land Use Issues: No Notice? No Problem!!

Brett M. Woodburn, Esquire

Anyone who has ever dealt with a local municipality on land-use issues knows two things: (1) the municipality must act upon an application within a limited period of time or the application will be deemed approved; and (2) land-use appeals must be filed no more than 30 days after the municipality's decision is entered.

What happens if the municipality doesn't give notice of an application for a conditional- use permit as required by statute? What happens if the municipality doesn't hold a public hearing on the conditional-use permit? Surely the appeal period begins to run once neighbors have actual notice that a permit has been issued or conditional use has been approved, doesn't it?

Would you believe there is no statute of limitations?

In April 2000, a mining company filed applications for conditional-use permits so it could begin coal-mining operations in the municipality. After a hearing, the Planning Commission recommended that the applications be approved. At the June 2000 public meeting, the Board of Supervisors adopted a motion to grant the permits and the mining operations began that December.

In June 2001, six months after the mining began, neighbors filed a petition challenging the Board of Supervisors' decision to grant the permits. Neighbors alleged that the supervisors did not provide public notice of their intent to act on the applications and did not hold public hearings before issuing the conditional-use permits. After years of procedural battles which the neighbors repeatedly lost, the claim finally made its way to the Pennsylvania Supreme Court.

The Supreme Court was asked to decide a very important question: If land-use decisions are made by municipalities without following the statutory procedural requirements, are those decisions void ab initio? In other words, were ordinances or use permits that were granted or approved without following the procedural safeguards tossed out as if they never happened?

The Supreme Court said YES!

The Court reaffirmed prior rulings that held the notice and hearing requirements for enacting ordinances and for conditional use permits are mandatory. Failing to comply with the notice and hearing requirements invalidates the ordinance or permit as if it never existed. These procedural safeguards are grounded in the fundamental principles of due process. They provide notice that a law or land use might change and ensure that the public is afforded the opportunity to weigh in and participate in considering the proposed changes.

What does this decision mean? If municipalities want to retain control over how land is used or ordinances are enacted, they need to strictly adhere to existing procedural requirements such as notice and hearing. If an applicant wants to rely on the finality of a municipality's decision approving an ordinance or issuing a conditional use permit, he must take steps to insure that the municipality follows the requisite safeguards. A lack of diligence by either municipality or applicant puts both entities at risk.