Court Dismisses Plaintiff’s Cloaked Actions as Actually an Untimely Land Use Appeal

Bell v. Springbrook Township, et al., Lackawanna County Court of Common Pleas, Docket No. 2638-C of 2005 (February 2, 2009)


Plaintiff lives in Virginia. She owns 23 acres of undeveloped land in a township in Pennsylvania. This acreage is adjacent to land owned by the Co-defendants who live on their property in Pennsylvania. The Co-defendants also operate a blacktopping business from their property, and have done so since before 1996. In 1996, the area encompassing Plaintiff’s and the Co-defendant’s properties was zoned residential.

In April of 2004, the Co-defendants started construction on a garage on their property. They did not apply for a permit until May of 2004, after construction of the garage was underway. The township issued a building permit for the garage. In addition to the building permit, the Co-defendants were given a Certificate of Nonconformance because they had been using their property in conjunction with their blacktopping business prior to the enactment of the Zoning Ordinance.

The Litigation

Plaintiff filed this lawsuit against the township and neighboring property owners seeking damages for a substantial diminution of value of her real property. She sought monetary damages against the township for negligence, fraud and negligent misrepresentation, and against the neighbors for nuisance. On behalf of the township, Wright & O’Donnell, P.C., argued that the lawsuit was really an untimely land use appeal, that the township was immune from Plaintiff’s claims, that the building permit was properly issued, and that the use of the property was a permitted, nonconforming use.

The Decision

The Court granted summary judgment to the township for all of the reasons asserted on its behalf. Specifically, Judge Harold Thomson found that Plaintiff’s claims were really an untimely appeal from the township’s decisions to issue the Building Permit and the Certificate of Nonconformance. He properly recognized that the thirty day appeal period for filing such an appeal began to run when the construction of the garage was visible to the public. The construction of the Co-defendant’s garage began in May of 2004. Plaintiff’s Complaint was not filed until more than a year later, on July 5, 2005. As such, Plaintiff’s claims against the township were untimely.

Judge Thomson also held that Plaintiff’s claims did not fall within any of the exceptions to the Tort Claims Act. As such, the township was statutorily immune from Plaintiff’s claims. “The actions of the permit issuer do not constitute negligent acts, nor do the actions fall within one of the categories set forth in subsection (b) of the Act.” Finally, the Court found that the use of the property in conjunction with the blacktopping business was a permitted and nonconforming use as it existed prior to the enactment of the 1996 Zoning Ordinance, which classified the property as residential.

For additional information, or a copy of this Opinion, please contact Law Wright, at Wright & O’Donnell, P.C., directly at 610-940-4092.