Wednesday, September 5, 2012

Who Retains Jurisdiction for Zoning Applicaton?

DeFilippo, et. al v. Cranberry Township Board of Supervisors, et. al, 2012 Pa. Commw. LEXIS 241 (2012).
Frank Kosir, Jr., Esquire
This matter addressed the issue of whether atownship board of supervisors retains jurisdiction to review a new zoningapplication where their approval of a prior zoning application for the sameproposed project has been appealed to the courts of common pleas. Carsense is the ownerof a 15-acre parcel of land (“Property”) situated in Cranberry Township, ButlerCounty, Pennsylvania. The Property is located in a PlannedIndustrial/Commercial Zoning District (“District”), in which automobile salesand service are a permitted conditional use. In 2010, Carsense filed an application seeking conditional use approvalto construct an automotive dealership/maintenance facility on theProperty. The Cranberry Township Boardof Supervisors (“Supervisors”) held a hearing on the application at whichseveral individuals (“Objectors”) appeared to oppose the application,contending that it did not comply with the applicable Township ordinances. Despite these objections, on November 4,2010, the Supervisors approved the application, granting Carsense thirteen (13)separate waivers of provisions under the Township Zoning Ordinance. On December 3, 2010, the Objectors appealedto the Butler County Court of Common Pleas, contending that the Supervisorshad, inter alia, abused their discretion in granting the application.

In January of 2011, while the Objectors’ appeal wasstill pending, Carsense filed a new land developmentplan and conditional use application changing the location of its proposedbuilding, and reducing the number of requested waivers from thirteen tofive. The Supervisors held a publichearing on the new application, and notice of the hearing was published inaccordance with the requirements of the Pennsylvania Municipalities PlanningCode (“MPC”). The Supervisors held asecond hearing on April 6, 2011, at which time they approved the new plan. Although they failed to appear at any of thehearings held on the new plan, the Objectors subsequently filed a “Supplementto Appeal,” seeking to challenge the Supervisors’ approval of the newplan. In support of this appeal, theObjectors asserted that they had no notice of the new plan until constructionactivities commenced on the Property and that, once their appeal from theapproval of the original plan had been filed, the Supervisors lacked the authorityto review any further applications with regard to the Property until such timeas their appeal had been adjudicated. Inresponse, Carsense filed a motion to strike the“Supplement to Appeal” and to dismiss the earlier appeal as moot. The trial court granted the motion, anddismissed the Objectors’ appeal in its entirety.

On appeal, our Commonwealth Court affirmed. In issuing its ruling, the court noted that,while Section 11002-A(a) of the MPC (53 P.S. §11002-A(a)) provides that anappeal from the determinations of a local agency vests the court of commonpleas with exclusive jurisdiction over that appeal, Section 11003-A(d) of theMPC (53 P.S. §11002-A(d) provides that the filing of an appeal does not staythe action appealed from unless the appellant separately petitions the courtfor a stay. As such, an appeal from aboard of supervisors’ zoning decision does not preclude the board fromconsidering an alternative application relating to the same project. In this matter, the Objectors failed to takeany action to request a stay and, as the Board of Supervisors approved the newplan, their appeal of the original approval was moot, and was properlydismissed by the trial court.

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