Appeal from the Order of the Court of Common Pleas of Butler County, in case of Mars Area Residents for a Safe Community v. Zoning Hearing Board of Adams Township, No. 85-398, Book 126, Page 355.
Lee R. Golden, with him, Robert P. Ging, Jr., for appellants.
Wesley F. Hamilton, for respondent, Zoning Hearing Board of Adams Township.
Charles F. Flach, III, Murrin, Taylor, Flach & Horan, for respondent, Adams Township.
Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. President Judge Crumlish, Jr., did not participate in the decision in this case.
[ 108 Pa. Commw. Page 506]
Mars Area Residents for a Safe Community (MARSC), petitioner, appeals from an order of the Court of Common Pleas of Butler County affirming the decision of the Zoning Hearing Board (Board) to dismiss petitioner's appeal as untimely. Qwest Microwave, Inc. (Qwest) applied for a building permit on September 10, 1984. This application was granted and the building permit issued the same day. Qwest began construction and excavation immediately. On January 1, 1985, Mr. Gregory Campbell, on behalf of petitioner, forwarded a letter to the township zoning officer (Adams Township). This letter demanded that the zoning officer enforce the zoning ordinance restricting such towers in an agricultural district. In essence, petitioner maintained that the tower was an impermissible non-conforming use.
On January 28, 1985, the zoning officer responded by letter indicating that no action would be taken to enforce an alleged violation of the ordinance. Petitioner
[ 108 Pa. Commw. Page 507]
appealed to the Board on February 27, 1985. The Board dismissed petitioner's claim as untimely. The trial court affirmed the Board both on the issue of untimeliness and on the merits. The Board and the trial court dismissed this appeal on the grounds that it was untimely under Section 915 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10915. Petitioner argues that this appeal was timely because it was made within thirty days of the zoning officer's denial of the request to enforce the ordinance and this was the procedure required by the ordinance before presenting the matter to the Board. Both the Board and the trial court ruled that, under Section 915 of the MPC, petitioner was required to appeal within thirty days of either the application for a building permit or from the point it had notice, knowledge or reason to believe that the application was granted.
Petitioner argues that, even if the zoning ordinance was inapplicable, it could not have appealed within thirty days under Section 915 of the MPC because the application for the building permit was misleading in that it failed to disclose the height (233 feet) of the microwave tower. As a result, petitioner contends, it had no notice, knowledge or reason to believe that a tower was being constructed. Petitioner also argues that the tower is not a public utility structure, a permitted use under the Adams Township Zoning Ordinance.
Where the trial court takes no additional evidence, our scope of review is limited to determining whether the zoning hearing board committed an error of law, abused its discretion or made findings not supported by substantial evidence. ...