Borough of Old Forge, PA Article XI Appeals to Court

§ 350-63 Land use appeals.

The procedures set forth in this article shall constitute the exclusive mode for securing review of any decision rendered pursuant to Article X or deemed to have been made under this chapter.

§ 350-64 Jurisdiction and venue on appeal; time for appeal. [1]

A. All appeals from all land use decisions rendered pursuant to Article IX of the Municipalities Planning Code[2] shall be taken to the Court of Common Pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision as provided in 42 Pa.C.S.A. § 5572 (relating to time of entry of order) or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given as set forth in § 350-51K of this chapter. It is the express intent of the General Assembly that, except in cases in which an unconstitutional deprivation of due process would result from its application, the thirty-day limitation in this section should be applied in all appeals from decisions.

[2] Editor's Note: See 53 P.S. § 10901 et seq.

B. Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption shall be raised by appeal taken directly to the Court of Common Pleas of the judicial district in which the municipality adopting the ordinance is located in accordance with 42 Pa.C.S.A. § 5571.1 (relating to appeals from ordinances, resolutions, maps, etc.).

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 350-65 Time for appeal; procedural defects of decisions. [1]

A. This section shall apply to all appeals challenging the validity of a land use decision on the basis of a defect in procedures prescribed by statute or ordinance.

B. Except as otherwise provided in Section 108 of the Municipalities Planning Code,[2] all appeals challenging the validity of a decision solely on the basis of a defect in procedure shall be filed within the time period provided in § 350-64A, unless a party establishes each of the following:

(1) That the person filing the appeal had insufficient actual or constructive notice of the decision to permit filing an appeal within the time period provided in § 350-64A. Notice of a hearing prior to the entry of a decision in accordance with § 350-51A, notice of a decision in accordance with § 350-51L or notice of a deemed decision provided in accordance with the Municipalities Planning Code shall establish constructive notice as a matter of law in any appeal under this section.

(2) That because of the insufficient actual or constructive notice of the decision, the application of the time limitation in § 350-64A would result in an impermissible deprivation of constitutional rights.

[2] Editor's Note: See 53 P.S. § 10108.

C. Appeals under this section shall only be permitted by an aggrieved person who can establish that reliance on the validity of the challenged decision resulted or could result in a use of property that directly affects such person's substantive property rights.

D. No decision challenged in an appeal pursuant to this section shall be deemed void from inception, except as follows:

(1) In the case of an appeal brought within the time period provided in § 350-64A, the party alleging the defect must meet the burden of proving that there was a failure to strictly comply with procedure.

(2) In the case of an appeal exempt from the time period provided in § 350-64A or brought pursuant to Section 108 of the Municipalities Planning Code,[3] the party alleging the defect must meet the burden of proving that, because of the alleged defect in procedure alone:

(a) The public was denied notice sufficient to permit participation in the proceedings prior to the entry of the decision to the extent such participation was authorized by statute or ordinance; or

(b) Those whose substantive property rights were or could be directly affected by the entry of the decision were denied an opportunity to participate in proceedings prior to the entry of the decision.

[3] Editor's Note: See 53 P.S. § 10108.

E. Substantial compliance with notice of a hearing required prior to the entry of a decision in accordance with § 350-51A shall establish notice adequate to permit public participation as a matter of law in any appeal under this section.

F. An adjudication that a decision is void from inception shall not affect any previously acquired rights of property owners who have exercised good faith reliance on the validity of the decision prior to the determination.

[1] Editor's Note: Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 350-66 Appeals to court; commencement; stay of proceedings.

A. Land use appeal notice. Land use appeals shall be entered as of course by the Clerk of Judicial Records upon the filing of a land use appeal notice which concisely sets forth the grounds on which the appellant relies. The appeal notice need not be verified. The land use appeal notice shall be accompanied by a true copy thereof.

B. Writ of certiorari. Upon filing of a land use appeal, the Clerk of Judicial Records shall forthwith, as of course, send to the Borough Council, board or agency whose decision or action has been appealed, by registered or certified mail, the copy of the land use appeal notice, together with a writ of certiorari commanding said Borough Council, board or agency, within 20 days after receipt thereof, to certify to the court its entire record in the matter in which the land use appeal has been taken, or a true and complete copy thereof, including any transcript of testimony in existence and available to the Borough Council, board or agency at the time it received the writ of certiorari.

C. Appellant other than landowner. If the appellant is a person other than the landowner of the land directly involved in the decision or action appealed from, the appellant, within seven days after the land use appeal is filed, shall serve a true copy of the land use appeal notice by mailing said notice to the landowner or his attorney at his last known address. For identification of such landowner, the appellant may rely upon the record of the Borough and, in the event of good faith mistakes as to such identity, may make such service nunc pro tunc by leave of court.

D. Stay of proceedings.

(1) Petition for stay by appellants. The filing of an appeal in court under this section shall not stay the action appealed from, but the appellants may petition the court having jurisdiction of land use appeals for a stay.

(2) Landowner's petition for appellant to post bond. If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal.

(3) Hearing to determine if filing of appeal is frivolous. After the petition for posting a bond is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the landowners to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for posting a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him/her if an appeal is taken from a final decision of the court.

(4) Petition for granting bond if petition is frivolous. The question of the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the respondent to the petition for posting a bond to post a bond shall be interlocutory.

(5) Appeal by respondent to petition for granting bond. If an appeal is taken by a respondent to the petition for posting a bond from an order of the court dismissing a land use appeal for refusal to post a bond, such responding party, upon motion of petitioner and after hearing in the court having jurisdiction of land use appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by petitioner.

§ 350-67 Intervention.

Within the 30 days first following the filing of a land use appeal, if the appeal is from a board or agency of the Borough, the Borough and any owner or tenant of property directly involved in the action appealed from may intervene as of course by filing a notice of intervention, accompanied by proof of service of the same, upon each appellant or each appellant's counsel of record. All other intervention shall be governed by the Pennsylvania Rules of Civil Procedure.

§ 350-68 Hearing and argument of land use appeal.

A. If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review or may refer the case to a referee to receive additional evidence, provided that appeals brought before the court pursuant to § 350-61, Validity; substantive questions, shall not be remanded for further hearings before any body, agency or officer of the Borough.

B. If the record below includes findings of fact made by the Borough Council, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the finding of the Borough Council, board or agency shall not be disturbed by the court if supported by substantial evidence.

C. If the record does not include findings of fact or if additional evidence is taken by the court or by a referee, the court shall make its own rulings of fact based on the record below as supplemented by the additional evidence, if any.

§ 350-69 Judicial relief.

A. Powers of the court in land use appeals. In a land use appeal, the court shall have the power to declare any ordinance or map invalid and set aside or modify any action, decision or order of the Borough Council, agency or officer of the Borough brought up on appeal.

B. Order of approval of development or use. If the court finds that an ordinance or map, or a decision or order thereunder, which has been brought up for review unlawfully prevents or restricts a development or use which has been described by the landowner through plans and other materials submitted to the Borough Council, agency or officer of the Borough whose action or failure to act is in question on the appeal, it may order the described development or use approved as to all elements or it may order it approved as to some elements and refer other elements to the Borough Council, agency or officer having jurisdiction thereof for further proceedings, including the adoption of alternative restrictions, in accordance with the court's opinion and order.

C. Additional court hearings.

(1) Upon a motion by any of the parties or upon motion by the court, the judge of the court may hold a hearing or hearings to receive additional evidence or employ experts to aid the court to frame an appropriate order. If the court employs an expert, the report or evidence of such expert shall be available to any party and he/she shall be subject to examination or cross-examination by any party. He/she shall be paid reasonable compensation for his/her services which may be assessed against any or all of the parties as determined by the court.

(2) The court shall retain jurisdiction of the appeal during the pendency of any such further proceedings and may, upon motion of the landowner, issue such supplementary orders as it deems necessary to protect the rights of the landowner as declared in its opinion and order.

D. Definitive relief for development or use. The fact that the plans and other materials are not in a form or are not accompanied by other submissions which are required for final approval of the development or use in question or for the issuance of permits shall not prevent the court from granting the definitive relief authorized. The court may act upon preliminary or sketch plans by framing its decree to take into account the need for further submissions before final approval is granted.