Real Property & Environmental Law Alert : New Jersey, New York, Pennsylvania & Delaware Lawyers & Attorneys for Real Estate Development & Environmental Law

The Commonwealth Court reversed, noting that the Common Pleas Court, in denying the standing of the appellants, could only point to case law relating to appellant standing from Zoning Hearing Board decisions. The case law with respect to those matters is well settled, making clear that an appellant has no standing to appeal if it does not formally appear or object at the zoning hearing board proceedings.

The Commonwealth Court in Miravich found that standing consists of two concepts:

• “substantive standing” examining whether the litigant has “sufficient interest in the outcome of the litigation to be allowed to participate,” and
• “procedural standing”, i.e, “[w]hether one has asserted his right to participate sufficiently early.”

Substantive standing is typically found where a party is aggrieved, or in other words, where the party has a direct, immediate and substantial interest in the application. A neighbor’s proximity to the subject property, such as existed here, will normally satisfy that requirement. It is the procedural question which separates the subdivision/ land development approval matters before the Planning Commission and the Board of Supervisors from the Zoning Hearing Board proceedings.

The Pennsylvania Municipalities Planning Code treats Zoning Hearing Board hearings as much more formal proceedings, requiring that, among other things, they conform to specific procedural requirements including the posting of the subject piece of property, the right of all parties to be represented by counsel and present evidence and arguments, and that a stenographic record of the hearing be kept. The MPC also defines those who will be afforded party status before the Zoning Hearing Board.

In contrast, applications for subdivision/ land development proceed down a much more informal track. The MPC even specifically states that public hearings are not required. As a result, the Commonwealth Court found that, “because similar procedural protections are not required in subdivision and land development applications, it will be manifestly unfair, if not a denial of due process, to impose such a stringent rule as a prerequisite to subdivision and land development appeals.” Consequently, the fact that the Miravichs and the other appellants did not appear at or participate in the Township meetings on the application was not a bar to their appeal of the Board’s decision. The Commonwealth Court determined that such an appellant need only satisfy the “party aggrieved” standard.

The Court does note however that if the Board of Supervisors had voluntarily followed the procedural requirements imposed by the MPC on a Zoning Hearing Board matter, than the Commonwealth Court would have agreed with the Court of Common Pleas that the appellants would have had to appear during the proceedings in order to appeal and would have been subject to the Leoni standards.

As a result of this decision, a developer can no longer take for granted the fact that the absence of participants at subdivision/ land development proceedings before the Township will preclude a viable appeal from the decision of the Township on that application. The prudent developer should consider waiting the requisite appeal period from the issuance of that Township decision before proceeding with the project and confirm that no appeal was filed.

Whether the Commonwealth Court’s decision has or will be appealed to the Supreme Court of Pennsylvania is unknown as of the date of this writing.

Alfred R. Fuscaldo is a Director in the Gibbons Real Property & Environmental Department.

The Act Does Not Apply to All Permits

The Act does not apply to other statutes, including the:

• "Keystone Opportunity Zone, Keystone Opportunity Expansion Zone and Keystone Opportunity Improvement Zone Act,"
• "The Underground Utility Line Protection Law," and
• certain other permits issued by the Pennsylvania Department of Transportation.

The Act also does not apply to permits with expiration dates determined by federal law, or to administrative consent orders and enforcement actions for a permit subject to the extension period.

How Long is a Permit Extended?

Under the Act, a permit granted under an applicable statute and having an expiration date after December 31, 2008 may have its expiration date extended until July 1, 2013, regardless of whether the permit was issued before or after the extension period. The Act does not shorten the life of a permit with an expiration date after July 1, 2013.

How Can You Find Out If the Act Applies to Your Permit?

The permit holder can request verification, subject to a fee, from the issuing agency of the existence of a valid permit and its expiration date, but must identify the permit in question and its anticipated expiration date. The issuing agency must tell you in writing within 30 days of receiving your request:

1. whether you have a permit;
2. its expiration date; and
3. stating any issues related to the validity of the permit.

Except in Philadelphia and Pittsburgh, the failure of the issuing agency to respond within 30 days will result in the "deemed affirmation of the existence of the [permit] and the expiration date set forth in the request."

In the City of Philadelphia, in order to exercise its right to extend the permit under the Act, the permit holder must provide the issuing agency with notice of its intent to extend the permit and pay the agency a fee equal to fifty percent of the original application fee, not to exceed $5000. Elsewhere, the issuing agency may charge a fee up to twenty five percent of the original application fee, but no more than $5000, to extend the Permit.

Permits granted pursuant to the MPC are protected from changes in a "zoning, subdivision or other governing ordinance or plan," such that those changes will not affect the permit holder’s right to begin or complete the activities authorized by the permit during the extension period. The extension period is further extended for the length of litigation, including appeals, concerning permits issued under the MPC that prevent the completion of the work authorized by the permit.

The Act brings Pennsylvania into line with New Jersey which enacted its own permit extension legislation in 2008. The Act gives needed flexibility and time to developers who may be facing financial challenges in the current economy. At a minimum, permit holders should consider verifying the viability of permits, and extending them as required, now so they will be in a position to proceed when market conditions warrant.

Alfred R. Fuscaldo is a Director in the Gibbons Real Property and Environmental Department.