Last week marked the one year anniversary of the permit suspension legislation signed by Governor Rendell on July 6, 2010. In case anyone out there forgot the significance of this legislation, now seems like a good time for a refresher.
The legislation, known as Act 46, provides for the automatic suspension, during the “extension period” (which begins after December 31, 2008 and ends before July 2, 2013), of certain permits and approvals granted by a government agency for or in effect during the extension period, whether obtained before or after the beginning of the extension period. That means that certain permits and approvals that were thought to have expired since December 31, 2008, have actually been suspended or extended , thereby buying a developer or landowner significant additional time.
I underline the words "suspended or extended" because, although the legislation calls for an "automatic suspension", there is dispute out there as to whether the life of a permit or approval is simply extended through July 1, 2013 such that all permits and approvals so extended would expire on July 1, 2013, or whether the permit or approval life existing on January 1, 2009 gets added after July 1, 2013 thereby creating an actual suspension.
In the case of In Re: Appeal of Keystone Custom Homes, Inc., brought before the Lancaster County Court of Common Pleas, the Court considered the issue as to whether Act 46 results in an extension through July 1, 2013 or a suspension, with approval life to be tacked on after July 1, 2013. In its decision, the Court held that the legislature’s use of the phrase “suspended during the Extension Period” suggests the General Assembly intended Act 46 to toll the running of the expiration dates, rather than merely postpone all expiration dates until July 1, 2013. Additionally, the Court also noted that Act 46 incorporates a formal process for approval holders to verify their approval’s expiration date, which the Court construed as meaning that the Act contemplated varying expiration dates, rather than just one mass expiration date of July 1, 2013 for all approvals.
While the Lancaster County Court of Common Pleas decision offers precedential value only within Lancaster County, the ruling does lend persuasive authority in other parts of the Commonwealth for approval holders confronted with municipalities or agencies arguing for a uniform July 1, 2013 expiration date.