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DIANE U. KALLMANN AND M. LETITIA HARRIS v. CARLISLE ZONING HEARING BOARD (07/08/88)

decided: July 8, 1988.

DIANE U. KALLMANN AND M. LETITIA HARRIS, APPELLANTS
v.
CARLISLE ZONING HEARING BOARD, ARKANSAS BEST FREIGHT SYSTEMS, INC., AND FARMERS TRUST COMPANY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Cumberland County, in the case of Diane U. Kallmann and M. Letitia Harris v. Carlisle Zoning Hearing Board, Arkansas Best Freight Systems, Inc., and Farmers Trust Company, No. 945 Civil 1987.

COUNSEL

Thomas M. Place, with him, John A. Alzamora, Thomas & Thomas, for appellants.

William F. Martson, Martson, Deardorff, Williams & Otto, for appellee, Arkansas Best Freight Systems, Inc.

Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 117 Pa. Commw. Page 500]

Diane Kallmann and M. Letitia Harris, objectors in a zoning matter, appeal an order of the Court of Common Pleas of Cumberland County which dismissed their complaint against the Carlisle Zoning Hearing Board, Arkansas Best Freight Systems, Inc. (ABF), and Farmers Trust Company for lack of jurisdiction. We affirm the trial court's decision.

The objectors' complaint alleges that, on September 26, 1986, Farmers Trust Company, as an estate trustee, filed for a variance with the board, requesting an increased allowance of the percentage of land which could be paved on a tract located in an industrial district. The board held a public meeting on the variance request on October 29, 1986. The objectors allege in their complaint that the notice provided for the hearing was legally deficient under the provisions of the Pennsylvania Municipalities Planning Code (MPC).*fn1

[ 117 Pa. Commw. Page 501]

The board granted the variance request in a written decision issued October 29, 1986. Farmers Trust later transferred the property to ABF, which then filed a preliminary development plan for a truck terminal with the Carlisle Planning Commission. No party or interested person appealed the board's October 29 decision.

On March 4, 1987, objector Kallmann, along with other individuals who are not parties to this action, petitioned the board to vacate the paving variance granted on October 29, 1986, claiming that the variance was a nullity because the board had failed to comply with the notice provisions of the MPC. On March 19, 1987, the board adopted an opinion prepared by its solicitor and denied the petition to vacate.

On April 1, 1987, objector Kallmann, now joined by Harris, filed a complaint with the court of common pleas, asking that the court assume jurisdiction over the matter and that . . .

2. the Court enter a declaratory judgment that:

(a) plaintiffs have standing to challenge the notice that preceded the Zoning Hearing Board meeting on October 29, 1986,

(b) the Zoning Hearing Board did not give proper public notice before granting defendant Farmers Trust Company its requested variance on October 29, 1986, and

(c) because notice was improper, the variance granted defendant Farmers Trust Company is a nullity.

Judge Edgar B. Bayley held that the objectors' action for declaratory judgment was a disguised appeal from the board's October 29, 1986 decision, and that the statutory time period for filing an appeal had expired more than four months before they filed their complaint on April 1, 1987. Because the timeliness ...


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