Human Development of Erie, Inc. v. Zoning Hearing Bd. of Millcreek Tp.

• Decision Date: 27 January 1992
• Citation: 143 Pa.Cmwlth. 675,600 A.2d 658
• Parties: , 2 NDLR P 163 HUMAN DEVELOPMENT OF ERIE, INC. v. The ZONING HEARING BOARD OF MILLCREEK TOWNSHIP. (Two Cases) Appeal of HUMAN DEVELOPMENT OF ERIE, INC. and Marie Kingsley et al. Appeal of LAKESHORE COMMUNITY SERVICES, INC.
• Court: Pennsylvania Commonwealth Court

Page 658

600 A.2d 658

143 Pa.Cmwlth. 675, 2 NDLR P 163

HUMAN DEVELOPMENT OF ERIE, INC. v. The ZONING HEARING BOARD OF MILLCREEK TOWNSHIP. (Two Cases)

Appeal of HUMAN DEVELOPMENT OF ERIE, INC. and Marie Kingsley et al.

Appeal of LAKESHORE COMMUNITY SERVICES, INC.

Commonwealth Court of Pennsylvania.

Argued May 1, 1991.

Decided Dec. 3, 1991.

Reargument Denied Jan. 27, 1992.

Mark J. Murphy, for individual cross-appellants.

John J. Mehler, for cross-appellant Human Development of Erie, Inc.

Richard W. Perhacs, for appellant Millcreek Tp. Zoning Hearing Bd.

Before CRAIG, President Judge, and COLINS, PALLADINO, McGINLEY, SMITH, PELLEGRINI and KELLEY, JJ.

PELLEGRINI, Judge.

Human Development of Erie, Inc., Lakeshore Community Services, Inc. (Providers), and eleven mentally retarded residents of three community residential facilities operated either by Human Development of Erie, Inc. or Lakeshore Community Services, Inc. (Residents), appeal an order denying their request for attorney's fees and costs pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, as amended, 42 U.S.C. § 1988 (Section 1988), and the Fair Housing Act, 42 U.S.C. § 3613(c).

On December 14, 1987, Millcreek Township (Township) adopted Ordinance No. 87-24 (Amendment), which was an amendment to its zoning ordinance, excluding from all residential and agricultural districts "group homes" ¹ for the "mentally retarded" and "physically handicapped" and "personal care boarding homes" ² for those over 62 years of age. Group homes and personal care boarding homes were only permitted as a special exception in "A" and "B" business districts.

On January 13, 1988, pursuant to Section 1005 of the Municipalities Planning Code (MPC), 53 P.S. § 11005, ³ providers and Residents challenged the validity of the Amendment to the Millcreek Township Zoning Hearing Board. Among other contentions raised before the Zoning Hearing Board, ⁴ either Providers or Residents claimed ⁵ that the Amendment violated the Equal Protection and Due Process Clauses of the United States and Pennsylvania Constitutions, because the zoning amendments impermissibly discriminated against certain persons and uses of property, and that the Township's action constituted an unlawful deprivation of rights under color of state law in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (Section 1983). ⁶

After a hearing, on July 27, 1988, the Millcreek Township Zoning Hearing Board rejected those claims and found that the Amendment violated neither federal nor state laws nor constitutions, and was "reasonably related to the protection of the public health, safety and welfare and was rationally related to a legitimate governmental purpose." Pursuant to Section 11008 of the MPC, 53 P.S. § 11008 ⁷, Providers and Residents appealed the decision to the court of common pleas.

On the basis of the record and without taking additional evidence, the trial court reversed the Millcreek Township Zoning Hearing Board and found that an exclusion of group homes and personal care boarding homes constituted a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. While the trial court did not specifically find a Section 1983 violation, it did find that the Amendment violated the recently amended Fair Housing Act, 42 U.S.C. § 3604(f), ⁸ because it impermissibly discriminated against the handicapped by lessening the availability of housing.

Because they prevailed, Providers and Residents requested attorney's fees and costs incurred in challenging the Amendment. The trial court denied the request for fees because it found that there was no bad faith on the part of the Township in enacting the Amendment.

Providers and Residents appealed the denial of attorney's fees and costs and the Township appealed the trial court's decision on the merits. Prior to argument, however, the Township withdrew its appeal. Consequently, the only issue on appeal is whether a party can receive Section 1988 attorney's fees and costs incurred as a result of a challenge before the Zoning Hearing Board and an appeal from an adverse decision to the court of common pleas.

Providers and Residents contend that they are entitled to attorney's fees, both under Section 1988 and the Fair Housing Act. Section 1988 provides that attorney's fees can be awarded:

The jurisdiction in civil and criminal matters conferred on the district courts [of the United States] by the provisions of this Title, and of Title "CIVIL RIGHTS" and of Title "CRIMES," for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. In any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revise Statutes [42 USCS §§ 1981-1983, 1985, 1986], title IX of Public Law 92-318 [20 USCS §§ 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. (Emphasis added.) ⁹

In similar language, the Fair Housing Act, 42 U.S.C. § 3613(c), provides that "the court in its discretion may allow the prevailing party ... a reasonable attorney's fee and costs." Because they prevailed in their challenge to the Amendment, Providers and Residents argue that the common pleas court, as part of its appellate review, was required to impose attorney's fees either under Section 1988 or under the Fair Housing Act. See Kentucky v. Graham, 473 U.S. 159, 164, 105 S.Ct. 3099, 3104, 87 L.Ed.2d 114, 120 (1985).

In North Carolina Department of Transportation v. Crest Street, 479 U.S. 6, 107 S.Ct. 336, 93 L.Ed.2d 188 (1986), the Supreme Court held that a prevailing party before an administrative agency cannot file an independent action to obtain Section 1988 attorney's fees, even if it had raised Section 1983-type claims before an administrative agency. While the Supreme Court has held that time spent before an administrative agency may be chargeable, either because the work was a condition precedent to a Section 1983 action, Crest Street, or was necessary to enforce rights obtained in a Section 1983 case, Commonwealth of Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), because "only a court in an action to enforce one of the civil right's laws listed in Section 1988 may award attorney's fees", it stated that "attorney's fees would be awarded only when those proceedings are part of or followed by a lawsuit." Crest Street, 479 U.S. at 14, 107 S.Ct. at 341. (Emphasis added.) ¹⁰ Accordingly, whether Providers and Residents can be awarded attorney's fees is determined by whether a Notice of Appeal to the common pleas court from an adverse zoning hearing board decision is a "lawsuit."

Providers and Residents contend that the appeal from the zoning hearing board to the common pleas court is a "lawsuit." They contend inasmuch if they had chosen to challenge the Amendment in federal district court, they would be entitled to attorney's fees, "it would be illogical not to award attorney's fees simply because this is a zoning appeal that originated before a zoning hearing board."

A lawsuit in Pennsylvania is a civil action commenced in a court of competent jurisdiction in accordance with and subject to the Pennsylvania Rules of Civil Procedure. Rule 1007 of the Pa.R.C.P. provides that an action is commenced by filing a praecipe for writ of summons, a complaint or an agreement of amicable action. To the contrary, a Notice of Appeal is not filed pursuant to the Pa.R.C.P. because the rules are inapplicable to all statutory appeals, including one from the zoning hearing board.

As the Supreme Court stated in Appeal of Churchill, 525 Pa. 80, 575 A.2d 550, 553 (1990):

In those special actions where we have not incorporated the rules of civil procedure by reference, they cannot be mandatorily imposed upon the trial courts or parties who litigate such matters. Such is the case with tax assessment appeals, and, more generally, with all statutory appeals, and to this extent, our Commonwealth Court's conclusion that the rules of civil procedure are inapplicable is correct, albeit for a different reason. (Emphasis added.)

A zoning Notice of Appeal then is not a lawsuit, but a statutory appeal filed pursuant to the MPC seeking the review of a zoning board action and cannot raise any issue not raised below. Moreover, it does not allow a judge to engage in fact finding, empanel a jury, award damages, ¹¹ authorize discovery, enter judgments or grant injunctions. A zoning appeal is just what it says--it is an appeal and not a lawsuit.

Correspondingly, under the federal rules, a Notice of Appeal is not a lawsuit. F.R.C.P. 2 provides that "There shall be one form of action to be known as 'civil action.' " ¹² F.R.C.P. 3 provides that "A civil action is commenced by filing a complaint with the court." A Notice of Appeal neither "commences" nor is it a "civil action", i.e., a lawsuit for which counsel fees can be awarded. To be cognizable as an action where Section 1988 counsel fees can be awarded, it...