Aug 12, 2016

Appealing Land Use Decisions: The Moral of ‘Pendle Hill’

The Pennsylvania Law Weekly, August 11, 2016

By: Marc D. Jonas, Esq.; John A. VanLuvanee, Esq.; and Zachary A. Sivertsen, Esq.

The process for obtaining land use approvals in Pennsylvania can be confusing, befuddling, or worse. Navigating through the various local, state and federal agencies is time consuming and costly; especially for the uninitiated. Submitting the right applications, obtaining permits and approvals from the litany of governmental boards and commissions, and working with—or against—neighbors and local community groups can be almost painful. A moment of carelessness can add considerable cost, time, and even risk to a project, if not completely derail it.

This was starkly demonstrated by the Commonwealth Court in its recent decision, Pendle Hill v. The Zoning Hearing Board of Nether Providence Township, 933 C.D. 2015 (Pa.Cmwlth. 2016). In Pendle Hill, the court held that a zoning hearing board’s obligation to notify objectors of the board’s final written decision was not satisfied merely by the objectors’ presence when the board voted. Rather, the zoning hearing board was obligated to provide the objectors with written notice, and failing to do so, the trial court was directed to determine whether the objectors should have an opportunity to appeal the decision nearly a year and a half after it was made.

The applicant (landowner) in Pendle Hill was a nonprofit corporation that operated a conference center. The landowner sought zoning relief to change the use of a residential property it had acquired, from its current residential use to an institutional use. The property, which included a six-bedroom single-family dwelling, adjoined the campus of the conference center. The landowner wanted to incorporate the building into its campus to serve as additional accommodations for people attending conferences.

Hearings were held on the application before the Zoning Hearing Board (ZHB) of Nether Providence Township in March and April of 2014. At the hearings, William and Erin Brophy (objectors), who owned a residential parcel adjoining the property opposite the conference center, appeared with counsel to oppose the application. Counsel for the objectors participated in the proceedings and presented an argument on the objectors’ behalf. At the conclusion of the second hearing, the ZHB voted on the record to deny the landowner’s requested relief.

In May 2014, after the ZHB issued its written notice of the decision, the landowner appealed, reserving the right to supplement its appeal once the ZHB issued the decision with findings of fact and conclusions of law. The ZHB issued that written decision in June 2014. (The landowner did not supplement the appeal.) The ZHB did not provide the objectors with either notice of its written decision or the subsequent decision, even though the objectors were participants at the hearing. In September 2014, the landowner and the township reached an agreement permitting the requested zoning change. The trial court thereafter issued an order in October 2014, that reversed the ZHB’s denial based on the stipulated agreement between the landowner and the township. The objectors did not intervene in the court appeal and were not parties to the agreement.

Five and a half months later, in March 2015, the objectors, through new counsel, filed a petition to open the trial court judgment and intervene in the landowner’s land use appeal beyond the statutory appeal period. The objectors argued that despite the fact that they had participated in the hearings and had been present when the ZHB voted to deny the application, the ZHB’s failure to notify them of the written decision with findings of fact and conclusions of law meant they had never received proper notice as required by the Pennsylvania Municipalities Planning Code (MPC). This, they contended, also deprived them of notice of the landowner’s land use appeal to the trial court, which in turn prevented the objectors from intervening in the appeal while it was still pending.

The trial court denied the objectors’ petition, holding that the notice requirements of Section 908(10) of the MPC imposed no duty to provide notice to the objectors. Therefore, the objectors’ claim that the ZHB had never informed them of its decision was frivolous because the objectors had been present when the decision in their favor was announced. Further, because the objectors were not aggrieved by the decision, the court inferred from their failure to take action afterward that they either dismissed or ignored the possibility that the landowner would appeal.

By failing to act diligently to discover whether the landowner had appealed, the court reasoned, the objectors had sat on their rights. It was their responsibility to discover whether an appeal had been taken from the ZHB decision. Therefore, even if the ZHB failed to provide notice to the objectors, it did not overcome the objectors’ own dereliction in waiting to seek intervention nearly a year after the landowner filed the appeal and five months after the trial court’s decision.

The objectors appealed this decision to the Commonwealth Court. The Commonwealth Court reversed the trial court’s decision and remanded for further proceedings. The court held that the objectors’ presence at the vote on the application did not alleviate the ZHB’s obligation to provide them with notice of the written decision with findings of fact and conclusions of law and the later decision pursuant to MPC Section 908(10). Since an untimely petition to intervene in a zoning appeal may be granted where the petitioner demonstrates “extraordinary cause,” it was necessary to remand the matter for the trial court to determine whether extraordinary cause existed.

The Commonwealth Court cited prior decisions holding that a land use appeal must be filed within 30 days of the issuance of the decision containing findings of fact and conclusions of law, and not the prior written notice of the decision, as in Bishop Nursing Home v. Zoning Hearing Board of Middletown Township, 638 A.2d 383 (Pa.Cmwlth. 1994); and in Border v. Zoning Hearing Board of City of Easton, 460 A.2d 918 (Pa.Cmwlth. 1983). This is problematic for a number of reasons. The notice of the decision satisfies the 45-day MPC deadline, but it is not the appealable event. Thus, on one hand, it acts as a decision, but on the other hand, it does not. Where an application is granted and not contested, a decision with findings and conclusions is not required. Yet, the municipality may still choose to appeal. What, then does the municipality appeal? Also, where a decision is preceded by written notice of the decision, there is no time limit for the issuance of the later decision.

The concern about “asymmetry”—different appeal periods for different parties—was discussed in the context of a subdivision and land development approval by the Pennsylvania Supreme Court in Narberth Borough v. Lower Merion Township, 915 A.2d 626 (Pa. 2007).

Pendle Hill demonstrates that even when an applicant does everything right, things can still go wrong. Adding to the confusion is the failure of both the trial court and the Commonwealth Court to note that the landowner’s appeal in Pendle Hill was premature and nonjusticiable. If we adhere to the reasoning of the Commonwealth Court, the landowner was required to file its appeal after the June 2014, decision which contained the findings of fact and conclusions of law. Instead, the landowner appealed the first written notice of the decision, and filed nothing after the June 2014 issuance of the written decision, (see Snyder v. Zoning Hearing Board of Warminster Township, 782 A.2d 1088 (Pa.Cmwlth. 2001).

The landowner’s appeal was premature. A jurisdictional matter can be raised at any time, and by the court sua sponte. This result would nullify the landowner’s appeal and the trial court’s order approving the settlement of the landowner and township, leaving the last valid decision as the ZHB denial of the landowner’s application.

So what could/should the landowner in Pendle Hill have done to avoid this result? Given the lack of clarity in the law, the landowner should have appealed both the notice of the decision and also the decision with findings of fact and conclusions of law. (Some local rules require service of notice of the appeal to parties below.) The landowner should have monitored the ZHB’s process in providing both the notice of the decision and the decision with findings of fact and conclusions of law, to ensure that the ZHB provided both to all parties to the hearing. Land use applicants and their legal counsel must be wary and vigilant of the procedural requirements of the MPC and local zoning rules.

Reprinted with permission from the August 11, 2016 issue of The Pennsylvania Law Weekly. (c) 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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