Holmes v. Board of Zoning Appeals City of Scranton
| Decision Date | 08 January 1990 |
| Parties | Mary Louise HOLMES, Appellant, v. The BOARD OF ZONING APPEALS OF the CITY OF SCRANTON and Scranton Lace Company, Inc., Appellees. |
| Court | Pennsylvania Commonwealth Court |
Argued Sept. 11, 1989.
Thomas M. Holmes, Scranton, for appellant.
Joseph G. Price, with him, Sean P. McDonough Kingston, for appellees.
Walter T. Grabowski, with him, Richard S. Bishop, Hourigan, Kluger Spohrer & Quinn, P.C., Wilkes Barre, for intervenor, Scranton Lace Co., Inc.
Before DOYLE and McGINLEY, JJ., and NARICK, Senior Judge.
Mary Louise Holmes (Holmes) appeals an order of the Court of Common Pleas of Lackawanna County (Court of Common Pleas) dated January 5 1989, which denied Holmes' petition for taking of additional evidence [1] in a matter in which the the Board of Zoning Appeals of the City of Scranton (Board) granted a request for a variance under the Scranton Ordinance (Ordinance) [2] to Scranton Lace Company, Inc. (Scranton Lace). [3] We affirm.
On May 13, 1987, Scranton Lace filed an application with the Board requesting a variance to decrease the required size of a loading zone already situated on its facility at 1313 Meylert Avenue in Scranton, Pennsylvania, pursuant to Section 36-198 of the Ordinance. [4] Scranton Lace's application stated: "Asking to decrease size of loading zone 12' X 45' is required [sic] (6.504 Addendum)." (Application for a Zoning Permit or Appeal Requiring Action by the Board of Appeals, Certified Record (CR), Exhibit "A.") The grounds for the variance were stated as: "To comply with." The application was advertised in the May 29, 1987, editions of the Scranton Times and the Scranton Tribune and by posting a notice in front of the premises of Scranton Lace at the corner of Glenn Street and Meylert Avenue.
After hearing on June 12, 1987, the Board granted Scranton Lace the variance. The record indicates that no parties appeared in opposition to the proposed variance. Construction of the loading dock commenced on December 23, 1987, and on January 7, 1988, Holmes appealed the Board's decision to the Court of Common Pleas alleging a lack of adequate notice to adjacent landowners as well as an improper grant of the variance in question. Answers were filed by the Board and by Scranton Lace alleging that Holmes' appeal was filed in excess of thirty days from the entry of the Board's order granting the variance. On May 13, 1988, Holmes filed a petition for taking of additional evidence alleging that no meaningful review of the Board's action could be made without additional evidence and that discovery proceedings were necessary. After oral argument on June 15, 1988, the Court of Common Pleas, on January 5, 1989, denied Holmes' petition on the basis of Holmes' untimely appeal. Holmes appeals.
Holmes seeks a remand of this matter for the holding of an evidentiary hearing, arguing that: the notice given by the Board was defective because it failed to adequately inform Holmes of the nature of the relief being sought by Scranton Lace and that the notice was not properly posted; the hearing conducted by the Board was defective because no stenographer was present and because the Board made no written findings of fact; and, the Board's grant of the variance was improper.
Scranton Lace argues that Holmes should not be permitted to appeal nunc pro tunc due to the absence of fraud; and, should this Court allow Holmes' appeal nunc pro tunc, the case should be remanded due to the inadequacy of the record.
The Board argues that the Court of Common Pleas' decision should be affirmed because it is supported by substantial evidence.
The Court of Common Pleas denied Holmes' petition for taking of additional evidence because "[t]o take additional evidence in this case would serve no purpose." (Opinion of the Court of Common Pleas, January 5, 1989, at 2.) The Court of Common Pleas stated:
The problem with Holmes' case is the lateness in filing her appeal with this Court. Generally where a statute fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence or grace and courts have no power to extend a statutory appeal time or to allow an appeal nunc pro tunc in the absence of fraud or its equivalent or some breakdown in the court's operation. Mackanick v. Rubin, [244 Pa.Superior Ct. 467], 368 A.2d 815 (1976). It is true that a zoning application which is misleading can be considered as tantamount to fraudulent and that such a misrepresentation could constitute lack of notice. Appeal of Girolamo, , 410 A.2d 940 (1980); Mars Area Residents v. Zon. Hear. Bd. , 529 A.2d 1198 (1987). We do not believe that the application and advertisement involved here were so misleading as to be tantamount to fraud. The test is not whether the notice gives complete detail concerning the application but whether it describes the substance of the application so that the interested persons will be alerted and afforded an opportunity to investigate further. Ryon, [sic] Pennsylvania Zoning Law and Practice sec. 9.4.13. There was no indication that Scranton Lace's request for a variance was made with any intent to deceive. Viewing the purpose of the notice of a zoning board hearing to be that of apprising the public of the general nature of a zoning application, this notice was adequate. Appeal of Booz , 533 A.2d 1096 (1987).
Opinion of the Court of Common Pleas at 3.The decision whether to permit an appeal nunc pro tunc is an equitable matter and our Court's scope of review is limited to a determination of whether the trial court has abused its discretion or committed an error of law. Department of Transportation, Bureau of Traffic Safety v. Rick, 75 Pa.Commonwealth Ct. 514, 462 A.2d 902 (1983). [5] An appeal nunc pro tunc may be granted only where the party making the request has shown that the delay in filing the appeal was caused by extraordinary circumstances involving "fraud or some breakdown in the court's operation through a default of its officers...." Nixon v. Nixon, 329 Pa. 256, 260, 198 A. 154, 157 (1938).
It is undisputed that Holmes filed her appeal on January 7, 1988, nearly seven months after the variance was granted on June 12, 1987. On April 28, 1988, Holmes filed a petition requesting the Court of Common Pleas to take additional evidence arguing that her appeal should be considered timely because the notice was inadequate both in its content and in the placement of the posting. Holmes relies upon In re Girolamo, 49 Pa.Commonwealth Ct. 159, 410 A.2d 940 (1980) where this Court concluded that where a store owner filed for a variance to convert a first floor rear apartment area into additional store area for an existing imported food store, but ultimately utilized this space to make and serve sandwiches, beverages, and pizza, the store owner's actions were sufficiently misleading as to be tantamount to fraud. We permitted a protester's late appeal of the board's granting of the variance. In Girolamo, the Court stated that "[w]here one intends to renovate a business premises in such a manner as to possibly compete with an adjacent business and fails to set forth explicitly what is to be done with the premises, the element of fraud begins to surface." Girolamo, 49 Pa.Commonwealth Ct. at 165, 410 A.2d at 944. The Girolamo Court concluded that the applicant knew or should have known that the information set forth on the application was not truly representative of what he actually intended to do with the premises, and was the equivalent of fraud. Holmes alleges that the notice by Scranton Lace did not adequately set forth the relief sought, just as the application in Girolamo did not, and that the notice was not adequately posted, thereby warranting an extension of her appeal period.
Section 36-199(1) of the Ordinance provides:
Public hearings to be held by a Board: Upon filing with the Board of an appeal, or of a request for a variance as required by the terms of the ordinance, or for such other purposes as provided herein where the Board deems it in the public interest, the Board shall fix a time and place for a public hearing thereon as follows:
(1) Public Notice: By advertising at least once in two newspapers of general circulation in the City, not less than fourteen (14) days or more than thirty (30) days in advance of such hearing.
Section 36-199(6) of the Ordinance provides:
Nature of the Notice
The notice required shall be posted upon instructions from the Board and shall state the location of the building or lot in question and the general nature of the question involved.
Section 908(1) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(1) requires that notices "be given at such time and in such manner as shall be prescribed by ordinance or, in the absence of ordinance provision, by rules of the board." Holmes argues that the notice should have stated that Scranton Lace proposed to construct a loading dock. The notice that appeared in the Scranton Tribune and the Scranton Times on May 29, 1987, contained essentially the same wording as Scranton Lace's application to the Board: "Scranton Lace- 1313 Meylert Avenue. Requesting a variance to decrease size of loading zone, 12' X 45' is required [sic]. M-1 Zone."
The Court of Common Pleas concluded that Scranton Lace's application and notice were not so misleading as to be fraudulent. In Appeal of Booz, 111 Pa.Commonwealth Ct. 330, 533 A.2d 1096 (1987) this Court stated:
Although our research has disclosed no Pennsylvania cases at the appellate...
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