Background
The South Chestnut Windpower Project in southern Fayette County has been the subject of litigation for nearly two decades. Thomas J. Bozek, a landowner whose property lies near (but not adjacent to) the turbine parcels, mounted a series of challenges beginning in 2007 when the developer, now Atlantic Wind LLC, sought special exceptions and variances from the Fayette County Zoning Hearing Board. That first wave of litigation was finally resolved in 2015, after the Commonwealth Court upheld the ZHB’s denial of some variances and the conditions placed on others.
During the pendency of that zoning litigation, Fayette County amended its zoning ordinance in 2009 to reclassify commercial wind turbines from uses requiring a special exception to permitted uses as of right. The Fayette County Planning Commission conditionally approved the developer’s land development plan on October 8, 2009, memorializing the approval in a written Development Approval Determination dated October 14, 2009. Construction began in 2010 or 2011, and the developer recorded the approved development plan with the Fayette County Recorder of Deeds on December 22, 2010. Bozek filed a land use appeal challenging the development plan approval on February 8, 2011 — claiming he had discovered that construction had started by reading about it on the internet in January 2011. The developer moved to dismiss the appeal as untimely. After years of delay and unsuccessful mediation, the Court of Common Pleas of Fayette County quashed the land use appeal in October 2024, ruling it was filed outside the Pennsylvania Municipalities Planning Code’s 30-day appeal window.
The Court’s Holding
Affirmed. Judge Fizzano Cannon, writing for a unanimous panel, affirmed the trial court’s quashal. Under Section 1002-A(a) of the Municipalities Planning Code (MPC), land use appeals “shall be filed within 30 days after entry of the decision,” with the date of service — or mailing if by mail — of the written decision deemed the date of entry. The Pennsylvania Supreme Court has long held that the written mailing of the decision, not a governing body’s verbal vote, triggers the appeal period. Narberth Borough v. Lower Merion Twp., 915 A.2d 626 (Pa. 2007).
Applying that framework, the court found the Development Approval Determination’s date of October 14, 2009, triggered the 30-day clock, giving Bozek until November 13, 2009 to file. His February 8, 2011 appeal was more than 15 months late. The court further held that even if the triggering date were taken as the date the plan was signed (December 21, 2010) or recorded (December 22, 2010) — the most favorable possible dates — the February 8, 2011 appeal still missed the 30-day window. Bozek’s argument that the clock should have started when he “accidentally discovered” construction by surfing the internet was flatly rejected: the MPC pegs the appeal period to the date of the written decision, not to a party’s subjective knowledge. The court also noted that Bozek never pleaded the Section 11002-1-A(b) due process exception — which allows an untimely appeal where a party lacked sufficient notice of the decision — in either the land use appeal or its amendment.
Key Takeaways
- Under MPC Section 1002-A(a), the 30-day appeal period for land use decisions runs from the date of the agency’s written decision (or mailing), not from a landowner’s subjective discovery that a project has been approved or construction has started.
- A landowner who claims insufficient notice of a land use decision must affirmatively plead the Section 11002-1-A(b) due process exception; failure to plead it forfeits the argument.
- Courts “have no power to extend the period for taking appeals, absent fraud or a breakdown in the court’s operation through a default of its officers” — even years-long delay in adjudicating a motion to dismiss does not revive an untimely-filed appeal.
- The triggering event is the written decision or its mailing, not the verbal vote of the governing body or the later recording of the approved plan.
Why It Matters
Bozek v. Atlantic Wind is a cautionary tale on the strictness of the MPC’s appeal deadlines. The opinion caps a 20-year dispute that consumed enormous resources — two rounds of zoning board appeals, a Pennsylvania Supreme Court remand, two failed mediations, and a decade of stagnated trial-court dockets — only to be resolved on a threshold jurisdictional defect that could have been identified in 2011. Practitioners representing adjacent landowners or objectors to development plan approvals should immediately calendar the 30-day MPC deadline from the date of any written approval, even when merits challenges are being simultaneously pursued through other proceedings.
The case also illustrates the limited reach of the MPC’s due process safety valve. Section 11002-1-A(b) does provide an exception where a party lacked actual or constructive notice — but it must be pleaded in the appeal itself. An objector who learns of an approval only after construction begins should simultaneously file a land use appeal and plead the notice exception, rather than assuming that belated discovery automatically tolls the clock. Waiting to investigate and then filing “without saying so” in the appeal document is not a path to jurisdiction.