Lebanon Solar I, LLC, v. North Annville Township Board of Supervisors and Grady Summers

Lebanon Solar I, LLC, v. North Annville Township Board of Supervisors and Grady Summers

Civil Action-Property Law-Municipal Law-Zoning-Conditional Use Permit-Land Use Appeal-Timeliness of Appeal-Final Decision-Service of Final Decision-Technical Procedural Requirements-Adjudication of Substantive Rights

Lebanon Solar I, LLC (“Lebanon Solar”) filed an application for a conditional use permit seeking to construct a large scale solar utility facility in North Annville Township.  After hearing, the North Annville Township Board of Supervisors (“North Annville Township”) on April 5, 2022 denied by vote the application without issuing a written decision at that time.  On May 5, 2022, Lebanon Solar filed a Notice of Land Use Appeal.  On May 12, 2022, the North Annville Township issued a written decision denying the application that was emailed to counsel for Lebanon Solar within hours of its publication.  The written decision was not mailed or personally delivered to Lebanon Solar’s representative.  On June 17, 2022, Lebanon Solar filed an Amended Notice of Land Use Appeal.  On September 20, 2022, the North Lebanon Township Board of Supervisors filed a Motion to Quash Appeal based upon the untimeliness of the appeal from the issuance of the written decision.  On October 11, 2022, Lebanon Solar filed an Answer and Request to Appeal Nunc Pro Tunc. 

1.  Section 1002-A of the Municipalities Planning Code (“MPC”), Title 53 P.S. § 10101 et seq., requires an appeal to be filed within thirty (30) days of the entry of a final decision.

2.  There is nothing in the MPC that equates a final decision to a written decision.

3.  Section 908 of the MPC requires that a copy of the final decision or the findings where no decision is called for shall be delivered to the applicant personally or mailed to the applicant no later than the day following the decision or findings. 

4.  The desire of Lebanon Solar to appeal an adverse decision has been clear with the record establishing that Lebanon Solar considered the proclamation from the attorney for North Annville Township Board of Supervisors that the April 5, 2022 decision would be a final decision so as to trigger the thirty (30) day appeal period and Lebanon Solar re-affirmed its desire to appeal by filing a supplemental document thirty-five (35) days after the publication of the written decision that never properly was served upon it. 

5.  Technical application of procedural requirements should not be elevated over a party’s clear efforts to have its substantive rights adjudicated, especially when the North Annville Township did not personally serve or mail a copy of its decision to Lebanon Solar as specified by the MPC service requirements.

L.C.C.C.P. No. 2022-00553, Opinion by Bradford H. Charles, Judge, February 13, 2023.