R.H. Nale, L.A. Mollica and R.E. Latker v. Hollidaysburg Borough and Presbyterian Senior Living
2008 C.D. 2015
Pa. Commw. Ct.Sep 28, 2016Background
- Presbyterian Senior Living (PSL) purchased a Hollidaysburg property in a Residential-Only (R2) district used by a school district; PSL sought rezoning to RB and an alley vacation; rezoning affected 19 parcels and was approved after notices and public hearings.
- PSL requested rezoning reviewed by Blair County Planning Commission and Hollidaysburg Planning Commission; Planning Commission and Borough Council conducted hearings and approvals.
- PSL pursued a land development plan including a lot merger and off-street parking reduction; design included a ~75,000 sq ft, 3-story facility with 41 dwelling units.
- Planning Commission recommended conditional preliminary approval; Borough Council initially declined due to unresolved parking conditions, then later approved the land development plan; objectors attended meetings and opposed.
- Objectors filed an August 26, 2015 petition for a preliminary injunction seeking to suspend the land development permit; trial court sustained preliminary objections and dismissed the complaint for lack of a timely MPC 1002-A(a) appeal; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the void ab initio doctrine tolls the MPC 30-day appeal period. | Nale argues due process violation from a misrepresented zoning map tolls the appeal period. | Borough/PSL contend void ab initio doctrine limited to notice/due process; map issue does not trigger tolling. | Void ab initio does not apply; appeal untimely even if injunction treated as appeal. |
| Whether the August 13, 2015 land development approval was timely appealed. | Objectors' August 26 filing can serve as an appeal under 42 Pa.C.S. §708(c) and tolled deadline. | An injunction petition is not an original equity proceeding to constitute an appeal; 30 days from August 13, 2015. | Objectors’ complaint in equity served as a timely appeal of the August 13, 2015 approval. |
| Whether separate preliminary and final land development approvals were required. | Chapter 22 requires separate approvals for preliminary and final plans. | If preliminary plan has no conditions, final plan approval can be automatic; separate approvals not required. | No separate approvals required when preliminary approval imposes no conditions; final approval can be consolidated. |
| Whether the consolidated approval violated Chapter 22 Sections 303–305 of the Hollidaysburg Ordinance. | Consolidated approval contradicted express sequencing requirements. | Ordinance permits consolidation when conditions are not imposed and final mirrors preliminary. | Consolidation comported with the ordinance; no error in approving both plans together. |
Key Cases Cited
- Schadler v. Zoning Hearing Board of Weisenberg Township, 850 A.2d 619 (Pa. 2004) (void ab initio tolling limited to due process concerns)
- Falkler v. Lower Windsor Township Zoning Hearing Board, 988 A.2d 764 (Pa. Cmwlth. 2010) (void ab initio doctrine limited to due process concerns)
- Graham v. Zoning Hearing Board of Upper Allen Township, 555 A.2d 79 (Pa. 1989) (preliminary plan approval can constitute final plan approval when no conditions exist)
- Borough v. Township of Maxatawny, 123 A.3d 347 (Pa. Cmwlth. 2015) (preliminary approval can bind to final plan when appropriate; timing rules apply)
- Robal Associates, Inc. v. Board of Supervisors of Charlestown Township, 999 A.2d 630 (Pa. Cmwlth. 2010) (timing and review standards in land development approvals)