In all facets of life, simple mistakes or a lack of understanding can lead to unwanted results. In the world of land use, such unwanted consequences can occur when required notice procedures for land use hearings are not strictly followed. This blog post, the first of a four-post series reviewing the Pennsylvania Municipalities Planning Code’s (the “MPC”) hearing requirements, reviews both the public notice and written notice requirements that zoning hearing boards and governing bodies (the “Board”) must follow prior to the first hearing. The three other posts, in which we discuss hearing timing requirements and the rules of the hearing, itself, are available here: Post 2, Post 3, and Post 4 to come.
Under Section 908(1) of the MPC, a Board must give “public notice” of the hearing. “Public notice” is defined in the MPC as “notice published once each week for two successive weeks in a newspaper of general circulation in the municipality.” The Pennsylvania Commonwealth Court interpreted “successive weeks” to be calendar weeks and that “publication upon any day of such weeks shall be sufficient publication for that week, but at least five days shall elapse between each publication.” In re McGlynn, 974 A.2d 525 (Pa. Commw. Ct. 2009). Further, the first publication cannot be more than 30 days prior to the hearing and the second publication cannot be less than seven days prior to the hearing. Finally, the notice must include the time, place, and matter of the hearing. Notwithstanding the outcome of a zoning hearing on the merits, where public notice is not properly afforded, objectors have a right to appeal.
In addition to public notice, the MPC requires that a Board provide written notice. Section 908(1) of the MPC states written notice: 1) must be given to the applicant, the zoning officer, and any other person who is either required by ordinance to receive it or has made timely request for it; and 2) must be conspicuously posted to the affected tract of land at least one week prior to the hearing. In addition to the requirements of the MPC, it is crucial to be aware of any additional requirements in your local municipality’s ordinance. In Kline v. Zoning Hearing Bd., 903 A.2d 77 (Pa. Commw. Ct. 2006), the township did not provide written notice of the hearing within the time-frame prescribed by its zoning ordinance and, as a result, the trial court’s determination to uphold the board’s decision was vacated and remanded with instructions that the board schedule a new hearing within sixty days and comply with the proper notice provisions of the local ordinance.
As you can see, failure to comply with notice requirements can have serious negative effects on a land use hearing – including unanticipated appeals and unwanted delays. Accordingly, developers should verify, and municipalities should double check, that required notice procedures are followed prior to a land use hearing. In addition to complying with notice procedures, municipalities are bound by certain time constraints for land use hearings. We’ll discuss those constraints in a post later this fall. In the meantime, a case in Luzerne County currently is dealing with this issue. More on that case is available here: Deemed Approval of Rehab Center.
Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.
Edited and revised to account for Post 2, Post 3 and Post 4.