Appealing a Notice of Zoning Code Violation or Adverse Zoning Determination

Various options are available after an adverse zoning determination or a notice of zoning code violation (“NOV”) is received allowing for appeal under certain circumstances. Residents and municipalities should be aware of the available procedures set forth in the Municipalities Planning Code (“MPC”) and the local zoning ordinances in order to avoid missteps.

Zoning ordinances vary widely across Pennsylvania. Consider an example of restrictions on fence construction which may include the type of material with which the fence is made or how far back it is set from the property line. The Pennsylvania Municipalities Planning Code applies to all municipalities outside of the Cities of Philadelphia and Pittsburgh. Zoning ordinances are enforced by the municipal zoning officers who are charged with permitting and the conduct of property inspections to ensure their compliance with the zoning ordinances.

If you receive a determination from a zoning officer, either over a violation or if a requested license was refused by the department, you can appeal the zoning decision to the Zoning Hearing Board or in the case of Philadelphia or Pittsburgh, the Zoning Board of Adjustment. Some municipalities have joint hearing boards while others are individual. The zoning hearing boards serve in a quasi-judicial capacity, and their purpose is to ensure that the application and enforcement of zoning ordinances is according to the letter of the ordinance and fair and equitable.

While the zoning boards must apply the ordinance, they also hear and decide appeals of determinations made by the zoning officers within 60 days of the application’s submittal. The officers are charged with applying the zoning ordinance they also have discretion to interpret ambiguous ordinances when necessary, and their interpretive determinations can be appealed as well as any determinations they have made regarding granting a permit, denying a permit, issuing a notice of violation or cease and desist order, and more. Zoning Hearing Boards also have the power to grant variances and special exceptions as authorized by the Zoning Ordinance.

An appeal of a determination of a zoning officer is permissible when the person appealing the decision on the land at issue has legal standing, that is, a legal owner of the land, a beneficial owner of the land, a lessee, or a person with proprietary interest in the land. The holder of an equitable interest such as an option or contract to purchase the land also has legal standing to appeal the decision. The municipality automatically has standing in the proceeding.

When an appeal is taken to the zoning hearing board, there will be a hearing in which the zoning officer, as the representative of the municipality presents relevant facts and conditions and the appellant argues why the ordinance does not or should not apply in such a way to their situation. Notice of these hearings must be given to the public through publication once a week for two successive weeks in a newspaper of general circulation in the municipality. The notice cannot be published more than 30 or fewer than 7 days before the hearing is set to be held. The notice provided must state the time and place of the hearing as well as the subject matter to be considered.

Along with providing public notice, the zoning hearing board is also required to send written notice to the applicant, the zoning officer, anyone who has requested the notification, and anyone else who has been designated by the governing body in the ordinance. Some ordinances also require stricter notice requirements, such as having “conspicuous posting” on the tract of land at issue prior to the hearing depending on the circumstances.

The hearing must be recorded by a stenographer, and the parties participating have the right to be represented by counsel. Parties must be allowed to respond, present evidence, and cross-examine adverse witnesses on all issues, and all testimonial evidence provided must be sworn. The chairman, acting chairman, or hearing officer presiding over the hearing have the power to issue subpoenas as well.

Upon conclusion of the hearing, the appellant or applicant may waive the final decision of the board and simply accept that which had been delivered by the zoning officer. Otherwise, the zoning hearing board provides the final decision on the matter through a vote, which is announced verbally at a public meeting of the Board. The Board must then submit either a written decision or written findings in support of the decision.

The decision of the zoning board or other governing body depends on what information was presented at the hearings and how the proposal by the appellant or applicant would impact other public functions such as roads, sewer facilities, water supplies, schools, and more. The procedures it follows while making its decisions are critical. When the zoning board has failed to follow proper procedures, such as holding the hearing within 60 days of the filing of the appeal, their decision will automatically be deemed to be in favor of the applicant. If such a scenario occurs, only an aggrieved party may appeal the deemed approval. There can be a deemed decision of denial, however, if a landowner challenges the validity of the ordinance on

substantive grounds and the validity challenge hearing is not held within 60 days of the filing or the zoning hearing board fails to issue a decision within 45 days of the last hearing. Decisions by the zoning board can be appealed to the County Court of Common Pleas and the Commonwealth Court, and if the zoning board’s decision is reversed, the board cannot appeal this reversal.

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