Apr 07, 2020

Jurisdictional Consequences in Zoning Appeals in ‘Friends of Lackawanna’

The Legal Intelligencer

By: Marc D. Jonas, Esquire

Locally unpopular land uses (not so affectionately known as LULUs) often have interesting and complicated histories. A proposed landfill expansion in Lackawanna County is one example.

This long-existing landfill sought to expand, predictably inciting significant citizen opposition led by a single-purpose nonprofit association that neither owns, nor leases property in the immediate vicinity of the landfill.
Procedurally, the case, Friends of Lackawanna v. Dunmore Borough Zoning Hearing Board, ___ A.3.d ___ (Pa. Cmwlth. 2020), began when the landowner sought the preliminary opinion of the zoning officer under MPC Section 916.2. The landowner requested confirmation that the landfill expansion was ordinance compliant. The zoning officer concluded that the landfill was not governed by the operative terms “building” and “building height,” and thus, not subject to a height requirement. The objectors appealed the preliminary opinion to the zoning hearing board.

Before the zoning hearing board the two principle legal issues were the standing of the objectors and the substantive question whether the landfill expansion was subject to a height regulation in the zoning ordinance. Was the landfill a structure? A building? Do landfills have roofs?

The zoning hearing board determined that the landfill was not a structure subject to the height regulations of the zoning ordinance, and, further, that the objectors lacked standing. The objectors appealed to the Lackawanna County Court of Common Pleas. On a separate motion to quash the appeal for lack of standing, the trial court agreed and quashed the appeal. The objectors next appealed to the Commonwealth Court, which held that the objectors did have standing, notwithstanding the association’s lack of an interest in real estate, or the significant distances between the residences of the individual objectors and the landfill itself. Separated, in fact, by more than one interstate highway. This is only one of very few land use decisions conferring standing on objectors who are a considerable distance from the objectionable land use.

The case returned to the trial court for a decision on the zoning merits. That is when the case got interesting, focusing on the difference between a zoning officer’s determination and a preliminary opinion; and the jurisdictional implications of both, specifically whether the zoning hearing board had jurisdiction because of the underlying preliminary opinion of the zoning officer and the failure of the objectors to preserve the issue of the substantive validity of the underlying zoning ordinance.

Therein lies the heart of the second Commonwealth Court opinion. The court concluded that given the preliminary opinion of the zoning officer, the MPC jurisdictional provision upon which the objectors relied, and the absence of a continuing substantive validity challenge to the underlying ordinance, the zoning hearing board lacked jurisdiction.

When the objectors first appealed to the zoning hearing board, they raised 14 legal issues (in 174 paragraphs that the Commonwealth Court later deemed “voluminous,” yet concise. The issues included a challenge to the substantive validity of the zoning ordinance. By the time of the zoning hearing board hearings, the only remaining issue was the applicability of the height regulation to the landfill. The objectors were no longer pursuing the substantive validity challenge.

Two different MPC jurisdictional provisions were analyzed by the Commonwealth Court—909.1(a)(3) [appeals from a zoning officer’s determination] and 909.1(a)(8) [appeal from the zoning officer’s preliminary opinion under MPC 916.2]. In the latter, the sole issue before a zoning hearing board is the substantive validity of the zoning ordinance. The purpose of 916.2 is to “… advance the date from which time for any challenge to the ordinance or map will run …” Recall the scope of the zoning officer’s preliminary opinion that the expansion was ordinance compliant—the ordinance does not limit the height of a landfill.

Objectors had not appealed the zoning officer’s preliminary opinion under 909.1(a)(8), but under 909.1(a)(3). Section 909.1(a)(3) does not provide a jurisdictional basis for an appeal of a zoning officer’s 916.2 preliminary opinion. The Commonwealth Court concluded that the zoning hearing board lacked jurisdiction given the objectors’ abandonment of the substantive validity challenge.

Round one goes to the objectors. Round two, landowner. Perhaps this saga is not yet at its end.

Reprinted with permission from the March 5, 2019 issue of The Legal Intelligencer. (c) 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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