Jane M. Shields, Esquire

Public hearings make land use applicants nervous. You never know who will appear, or what will be said or asked. The sooner a hearing is over, the better. If the proper notice and hearing procedures have not been applied, however, a decision to grant a conditional use may be attacked months later when the application is well along to preliminary, if not final, approval.

Several years ago, in the Schadler decision, the Pennsylvania Supreme Court sent a shock wave through municipalities when it held that without strictly following the notice, circulation, and hearing requirements of the Municipalities Planning Code, a zoning ordinance amendment that had been passed could be challenged - and defeated - months, if not years, after passage of the ordinance.

Last year, in Luke v. Cataldi, the Supreme Court struck again. At issue in Luke was conditional use approval given to coal mining companies to mine in South Buffalo Township. The Planning Commission recommended approval of the application, and the Supervisors granted it in the regular course of business at a scheduled meeting. There was no notice of a public hearing, nor was a public hearing held on the application. Protesters knew nothing of the conditional use request until after mining operations began.

The protesters tried filing suit first in the Commonwealth Court, without success. They then turned to the local Court of Common Pleas eleven months after the conditional use application had been granted. Unsuccessful in the trial court and before the Commonwealth Court, the protesting neighbors succeeded in the Supreme Court because of the defects in the procedure of approving the land use application of the mining companies.

In deciding Luke, the Supreme Court held that the procedural requirements of the MPC must be followed in land use decisions, just as in adopting ordinances. If the required procedure is not followed, the decision of the governing body is void, and may be challenged and set aside long after the land use application has been granted.

While public notice and public hearing requirements cause us all great agita because of the uncertainties of who will appear and the strange issues that may pop up, those procedures must be strictly complied with, or the land use decision is subject to attack long after the applicant has moved on with the project. Compliance with the procedures required by the MPC requires vigilance to ensure a land use decision that will withstand later attack.

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