Mars Area Residents for a Safe Community v. Zoning Hearing Bd. of Adams Tp.

• Decision Date: 17 August 1987
• Citation: 529 A.2d 1198,108 Pa.Cmwlth. 505
• Parties: MARS AREA RESIDENTS FOR A SAFE COMMUNITY, Appellants, v. ZONING HEARING BOARD OF ADAMS TOWNSHIP, Appellee. 1497 C.D. 1986
• Court: Pennsylvania Commonwealth Court

Page 1198

529 A.2d 1198

108 Pa.Cmwlth. 505

MARS AREA RESIDENTS FOR A SAFE COMMUNITY, Appellants, v. ZONING HEARING BOARD OF ADAMS TOWNSHIP, Appellee.

1497 C.D. 1986

Commonwealth Court of Pennsylvania.

Argued March 27, 1987.

Decided Aug. 17, 1987.

Lee R. Golden, Robert P. Ging, Jr., Pittsburgh, for appellants.

Frank P. Krizner, Charles F. Flach, III, Butler, for appellee.

Before CRAIG and BARRY, JJ., and NARICK, Senior Judge.

OPINION

BARRY, Judge.

Mars Area Residents for a Safe Community (MARSC), petitioner, appeals from an order of the Court of Common Pleas of Butler County affirming the decision of the Zoning Hearing Board (Board) to dismiss petitioner's appeal as untimely. Qwest Microwave, Inc. (Qwest) applied for a building permit on September 10, 1984. This application was granted and the building permit issued the same day. Qwest began construction and excavation immediately. On January 1, 1985, Mr. Gregory Campbell, on behalf of petitioner, forwarded a letter to the township zoning officer (Adams Township). This letter demanded that the zoning officer enforce the zoning ordinance restricting such towers in an agricultural district. In essence, petitioner maintained that the tower was an impermissible non-conforming use.

On January 28, 1985, the zoning officer responded by letter indicating that no action would be taken to enforce an alleged violation of the ordinance. Petitioner appealed to the Board on February 27, 1985. The Board dismissed petitioner's claim as untimely. The trial court affirmed the Board both on the issue of untimeliness and on the merits. The Board and the trial court dismissed this appeal on the grounds that it was untimely under Section 915 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10915. Petitioner argues that this appeal was timely because it was made within thirty days of the zoning officer's denial of the request to enforce the ordinance and this was the procedure required by the ordinance before presenting the matter to the Board. Both the Board and the trial court ruled that, under Section 915 of the MPC, petitioner was required to appeal within thirty days of either the application for a building permit or from the point it had notice, knowledge or reason to believe that the application was granted.

Petitioner argues that, even if the zoning ordinance was inapplicable, it could not have appealed within thirty days under Section 915 of the MPC because the application for the building permit was misleading in that it failed to disclose the height (233 feet) of the microwave tower. As a result, petitioner contends, it had no notice, knowledge or reason to believe that a tower was being constructed. Petitioner also argues that the tower is not a public utility structure, a permitted use under the Adams Township Zoning Ordinance.

Where the trial court takes no additional evidence, our scope of review is limited to determining whether the zoning hearing board committed an error of law, abused its discretion or made findings not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

We need reach only the issue of timeliness and, accordingly, affirm the trial court. Section 915 of the MPC reads:

§ 10915. Time limitations; persons aggrieved

No person shall be allowed to file any proceeding with the board later than thirty days after any application for development, preliminary or final, has been approved by an appropriate municipal officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.

The failure of anyone other than the landowner to appeal from an adverse decision on a tentative or preliminary plan pursuant to section 709 or from an adverse decision by a zoning officer on a challenge to the validity of an ordinance or map pursuant to section 1005(b) shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative or preliminary approval. (Footnotes omitted.) (Emphasis added.)

Petitioner argues that it never had notice, knowledge or reason to believe that approval had been given for the construction of a tower. The trial court found differently and ruled that petitioner did have actual notice and, thus, failed to timely file its appeal. We believe this finding is supported by substantial evidence in the record. The testimony of several of the protestants and members of petitioner show that they were aware of the construction as early as September of 1984 and that although the application did not specify the exact height of the tower it did specify that a "building and tower" was being erected and the building permit which was issued that same day indicated the height of the tower.

It is true that we consider an application which is misleading to be tantamount to fraudulent and such a misrepresentation could constitute lack of notice. Appeal of Girolamo, 49 Pa. Commonwealth...