J. Slusser, Admin. of the Estate of A. Slusser, and J. Slusser and E. Mancuso, h/w v. Black Creek Twp. ZHB, and J. Sidari and M. Sidari, h/w
124 A.3d 771
| Pa. Commw. Ct. | 2015Background
- Sidaris property at 1618 Spruce Street, Bloomsburg, in a residential district, has operated a commercial excavation business since the 1950s.
- Sidaris obtained a 2005 permit to erect a pole barn to store trucks and equipment for the business.
- Sidaris applied for and received a non-conforming use certificate on November 3, 2011.
- Objectors Slusser and Mancuso own adjacent property and learned of the certificate on April 5, 2012, prompting a May 4, 2012 land use appeal to the Zoning Board.
- Zoning Board dismissed the appeal as untimely on August 2, 2012; trial court denied relief; Commonwealth Court affirmed.
- Key issue: whether a non-conforming use certificate is an “application for development” under MPC 914.1, since the certificate documents use existence but does not authorize development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the non-conforming use certificate appeal is timely under MPC 914.1 | Objectors: timely under 914.1 as to knowledge date. | Sidaris: timing not applicable; certificate not appealable. | Irrelevant; certificate not appealable; timing need not be reached. |
| Whether a non-conforming use certificate is an 'application for development' under 914.1 | Objectors contend certificate is an application for development triggering 30-day clock. | Certificate documents existence; does not authorize development; not an application for development. | Not an application for development; 914.1 does not apply. |
Key Cases Cited
- Berryman v. Wyoming Borough Zoning Hearing Board, 884 A.2d 386 (Pa. Cmwlth. 2005) (limits tolling to actual knowledge or reason to believe)
- Haaf v. Zoning Hearing Board of Township of Weisenberg, 625 A.2d 1292 (Pa. Cmwlth. 1993) (burden on objector to prove timeliness with notice)
- DoMiJo, LLC v. McLain, 41 A.3d 967 (Pa. Cmwlth. 2012) (certificate is a procedural tool, not a property right)
- Mazeika v. American Oil Co., 118 A.2d 142 (Pa. 1955) (nuisance relief may be sought independently of zoning compliance)