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An Important Notice – Regarding Notice

By Esch McCombie & Benjamin Ward on July 16, 2018
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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.

Esch McCombie

Esch is an an at McNees Wallace & Nurick LLC in Harrisburg, PA.  He is a member of the Firm’s Real Estate Practice Group, Oil & Natural Gas Group and the Pipeline & Oil/Gas Infrastructure Group.

He focuses his practice on land use…

Esch is an an at McNees Wallace & Nurick LLC in Harrisburg, PA.  He is a member of the Firm’s Real Estate Practice Group, Oil & Natural Gas Group and the Pipeline & Oil/Gas Infrastructure Group.

He focuses his practice on land use matters and permit approvals at the municipal, county and state level. His work includes reaching favorable zoning and land development outcomes by way of variances or waivers, special exceptions or conditional uses, zoning amendments and challenges to ordinances, and negotiations with municipalities and other government agencies throughout Pennsylvania. In addition, he works on storm water management and transportation issues that often arise with land use matters. On a national level, Esch conducts zoning and land use due diligence associated with mergers and acquisitions and the purchase or sale of properties and businesses. He has assisted commercial, industrial and residential developers, educational institutions, pipeline and other oil and gas related companies, telecommunication companies, and small business owners and start-ups. Esch has received favorable determinations, decisions and approvals for large warehouse and distribution centers, residential communities of all types, urban redevelopment projects, craft breweries and event venues, car dealerships, pipeline projects, and coal to natural gas conversion projects.

While in law school, Esch served as a Senior Editor of the Penn State Law Review, was the Dickinson School of Law Liaison to the Carlisle Borough Council, Carlisle, PA, and was a judicial intern to the Honorable Christopher C. Conner, U.S. District Court. Prior to his legal career, Esch spent seven years working in the claims department of a Fortune 500 insurance company.

Esch currently serves on the McNees Hiring Committee, is Co-Editor of the McNees Land Use Blog, and is President of the Board of Directors of the Carlisle Theatre.

Read more about Esch McCombieEmail
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  • Posted in:
    Real Estate & Construction
  • Blog:
    McNees Land Use Blog
  • Organization:
    McNees Wallace & Nurick LLC
  • Article: View Original Source

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