Hill v. Zoning Hearing Bd. of Nether Providence Twp.

• Citation: 134 A.3d 1187
• Decision Date: 10 March 2016
• Docket Number: No. 933 C.D. 2015,933 C.D. 2015
• Parties: Pendle HILL v. The ZONING HEARING BOARD OF NETHER PROVIDENCE TOWNSHIP Appeal of: William Brophy and Erin Brophy.
• Court: Commonwealth Court of Pennsylvania

134 A.3d 1187

Pendle HILL
v.
The ZONING HEARING BOARD OF NETHER PROVIDENCE TOWNSHIP

Appeal of: William Brophy and Erin Brophy.

No. 933 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued Feb. 8, 2016.
Decided March 10, 2016.

134 A.3d 1188

John P. McBlain, Media, for appellants.

Michael P. Dignazio, Media, for appellee Pendle Hill.

BEFORE: ROBERT SIMPSON, Judge, P. KEVIN BROBSON, Judge, and MICHAEL H. WOJCIK, Judge.

OPINION BY Judge SIMPSON.

In this procedurally unusual zoning appeal, William and Erin Brophy (Objectors) ask whether the Court of Common Pleas of Delaware County (trial court) erred in denying their petition to open the judgment. The trial court's judgment reversed the Zoning Hearing Board of Nether Providence's (ZHB) denial of zoning relief to Pendle Hill (Applicant) as well as Objectors' petition to intervene nunc pro tunc or "now for then" in Applicant's land use appeal. Objectors ask whether the trial court abused its discretion by not finding that extraordinary cause existed to open its order reversing the ZHB's decision beyond the 30–day limit to rescind orders, when: (1) Objectors presented uncontested facts that as parties they received no notice of the ZHB's written decision, its findings of fact or conclusions of law; and, (2) the trial court reversed the ZHB's decision on grounds never raised before the ZHB and never raised in Applicant's land use appeal. Upon review, we vacate and remand for a determination of whether extraordinary cause exists to justify Objectors' untimely intervention in Applicant's land use appeal to the trial court, and, if so, to allow Objectors to intervene in Applicant's land use appeal.

I. Background

Applicant is a not-for-profit corporation whose mission is to maintain the Quaker Study Retreat and Conference Center at 338 Plush Mill Road, Nether Providence Township (Township), Wallingford, Delaware County. Its existence and location predate zoning legislation in the Township.

In 2013, Applicant acquired the property located at 318 Plush Mill Road (property), a six bedroom, two-and-a-half bath single-

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family dwelling that immediately adjoins Applicant's campus on one side and property owned by Objectors, located at 314 Plush Mill Road, on the other side. The property lies in an R–1a residential zoning district. Applicant seeks to use the property to accommodate conferees at its Conference Center.

In February 2014, Applicant filed an application with the ZHB seeking a variance to permit the use of the property as part of its Quaker Study Retreat and Conference Center. Alternatively, Applicant sought a determination that the Zoning Ordinance of the Township of Nether Providence (zoning ordinance) was de facto exclusionary because it did not provide for a "fair share" of educational, religious or philanthropic uses. Reproduced Record (R.R.) at 3a. As a further alternative, Applicant sought a special exception.

The ZHB held a hearing on Applicant's requests for zoning relief in March 2014 at which Objectors appeared with counsel. Objector William Brophy testified. At the conclusion of a second hearing in April 2014, during which Objectors' counsel presented argument on Objectors' behalf, the ZHB voted orally on the record to deny Applicant's application for zoning relief.

In May 2014, Applicant filed a land use appeal with the trial court. The land use appeal indicated that Applicant received letter notice of the ZHB's decision that was issued orally at the April 2014 hearing, but it had not yet received a copy of the ZHB's written decision. As such, Applicant reserved the right to supplement the basis for its land use appeal upon receipt of the ZHB's written decision. Applicant further asserted it was entitled to "site specific relief" on the ground that

it is a matter of public record that [the Township] comprises an area of 4.72 miles. The area of the current R–5A District, is about ½ of 1 percent of the entire Township area[.] It is also a matter of public record that from the time that R–5A(1) was last addressed by the Township governing body to the present, the entire extent of the R–5A Zoning District was 100 percent developed and maintained by Addison Hines and Ed Coslett's Wallingford Arms Apartments. The Wallingford Arms Apartments is a complex of 64 row-house type apartments with an office in five two-story buildings separated by parking. There is absolutely not one square foot of space for any Institutional use in the R–5A District.

Tr. Ct., Slip Op., 8/13/15, at 3; R.R. at 11a.

In June 2014, the ZHB issued its written decision containing findings of fact and conclusions of law in which it determined Applicant was not entitled to any of its requested zoning relief in order to change the use of the property from a residential home to an institutional use. The ZHB determined Applicant did not prove any hardship nor did it show the zoning ordinance was de facto exclusionary.

Thereafter, on October 9, 2014, the trial court issued an order reversing the ZHB's decision. It did so "based upon an agreement reached, subsequent to a conference with the [trial court] on September 11, 2014, between counsel for [Applicant] and the [Township] Solicitor that the matter be resolved pursuant to the [federal Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc –2000cc–5 ]." Tr. Ct., Slip Op., at 8. The trial court's order states:

AND NOW, this 9th day of October, 2014 upon consideration of the Land Use Appeal and after conference and any submittals by the parties, it is hereby ORDERED, ADJUDGED and DECREED that the Appeal is sustained and that the decision of the [ZHB], dated

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April 21, 2014 is hereby REVERSED, by virtue of the [RLUIPA].

AND FURTHER, the [Township] Zoning Officer shall issue a Certificate of Occupancy to [Applicant] for the premises 318 Plush Mill Road, permitting thereon institutional use in conjunction with the adjoining Pendle Hill Quaker Center.

R.R. at 20a.

Approximately five-and-a-half months later in March 2015, Objectors, through new counsel, filed a petition to open judgment and to intervene in Applicant's land use appeal nunc pro tunc. The trial court explained that the gravamen of Objectors' concerns was that, despite their counsel entering an appearance and their actions as party participants at the ZHB hearings, and even having been present when the ZHB's decision in their favor was delivered orally on April 21, 2014, Objectors were never provided written notice of the ZHB's decision, or of Applicant's land use appeal to the trial court, which allegedly deprived them of the opportunity to intervene in the appeal. In response to Objectors' petition, Applicant filed an answer with new matter. Objectors filed an answer to Applicant's new matter.

The trial court subsequently issued an order denying Objectors' petition, stating:

AND NOW, this 28th day of April, 2015, upon consideration of [Objectors'] Petition to Open Judgment Dated October 9, 2014 and to Intervene In land Use Appeal Nunc Pro Tunc filed on March 24, 2015, [Applicant's] Response thereto with New Matter, and [Objectors'] Response (sic) thereto, it is hereby ORDERED and DECREED that the said Petition will be, and hereby is, DENIED because this action terminated on November 9, 2014 and thereby deprived the Court of jurisdiction as to all matters filed subsequent to that date.

R.R. at 73a. Objectors appealed, and the trial court directed them to file a concise statement of the errors complained of on appeal (Statement), which they did.

The trial court then issued an opinion pursuant to Pa. R.A.P.1925(a) in which it first explained that several of the issues raised in Objectors' Statement were waived because Objectors did not previously raise them before the trial court. Additionally, the trial court stated, because Objectors' barebones contentions that they were deprived of any right to intervene in Applicant's appeal were not supported by corroborating evidence, nor by appropriately developed pertinent legal argument, every other issue set forth in their Statement was waived.

Nevertheless, the trial court explained, Objectors' alleged grounds for their appeal only applied if they sought and attained the standing that would have allowed for their involvement in Applicant's appeal to the trial court. In terms of the failure to inform Objectors of Applicant's appeal from the ZHB's decision, the trial court stated, Objectors' insistence that Applicant was obligated to provide them notice of that appeal was frivolous, as was the allegation that the ZHB never informed them in any way of a decision that was undisputedly heard by Objectors' "directly from the horse's mouth." Tr. Ct., Slip Op. at 14. The trial court explained Objectors were present in the hearing room when the decision in their favor was uttered and, because they were not aggrieved by that decision, it could be inferred from their failure to take action afterward that they either dismissed or ignored the potentiality for an appeal to be taken by Applicant.

By subsequently failing to exercise the diligence to discover that Applicant filed an appeal with the trial court, Objectors...