rejecting vested rights claim because applicant’s expenditures were not “unrecoverable” and, in doing so, distinguishing cases finding vested rights where applicants applied for permits before they completed purchase of their properties
How later courts described this case
- rejecting vested rights claim because applicant’s expenditures were not “unrecoverable” and, in doing so, distinguishing cases finding vested rights where applicants applied for permits before they completed purchase of their properties
Written by the judges who cited it.
The opinion
ZAPPALA, Justice,
dissenting.
I respectfully dissent. The majority holds that “[t]he Board’s allowance of appeal was both correct and appropriate,” rejecting the Appellant’s argument that the protest challenging the issuance of the occupancy permit was untimely. This holding rests on the terse observation that *617 “[a]t least one of the protestants before this Board attested on the record that he did not become aware of the permit more than thirty (30) days before the filing of the appeal.” This “attestation on the record”, however, consists of no more than an affidavit signed by one of the protestants, David Goldhammer, containing the vague, self-serving statement that “[t]he first time I knew that a Certificate of Occupancy had been issued for that house was in the middle of May — about two weeks before the Memorial Day weekend. Mr. Crawford [another protestant and attorney for the group of protestants] and I were chatting about the neighborhood and he told me that he had discovered that a Certificate of Occupancy had been issued to Mr. Holzapfel. I was surprized [sic] — and upset — and told him that I would like to join in an appeal.” More importantly, this affidavit was not sworn to until eighteen days after the Zoning Board hearing on the appeal. 1
Section 10915 of the Municipalities Planning Code provides:
No person shall be allowed to file any proceeding with the board later than thirty days after any application for development, preliminary or final, has been approved by an appropriate municipal officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
53 P.S. § 10915 (emphasis added). Record 67a. It is disturbing that the majority would accept as proof sufficient to *618 meet the protestants’ burden under the foregoing statute an affidavit of dubious validity submitted ex parte after the hearing. At the very least, the Appellant was denied any opportunity to challenge this “evidence” by way of cross-examination. This is especially disconcerting in light of the fact that the only testimony offered at the hearing relevant to the issue of timeliness indicated that the witness (Mr. Crawford) knew of the issuance of the permit more than thirty days prior to the filing of the appeal.
Because the protestants did not, by evidence properly on the record, meet their statutory burden of proving that they “had no notice, knowledge, or reason to believe that ... approval had been given,” I would hold that the Board did not have jurisdiction to entertain the petition. See Township of Upper Moreland v. Gaunt, 16 Pa. Commonwealth Ct. 334 , 328 A.2d 556 (1974).
LARSEN, J., joins in this dissenting opinion.
. It is also noted that although the affidavit contains a jurat signed by Attorney Crawford identifying himself as a notary public, it does not contain a statement of the date of expiration of his commission nor is it impressed with a notarial seal. See 57 P.S. § 160.