Pascal v. City of Pittsburgh Zoning Bd. of Adjustment, 22 WAP 2020

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtJUSTICE DOUGHERTY
Citation259 A.3d 375
Parties Stephen PASCAL and Chris Gates, Appellants v. CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENT, and City of Pittsburgh and Northside Leadership Conference, Appellees
Docket NumberNo. 22 WAP 2020,22 WAP 2020
Decision Date22 September 2021

259 A.3d 375

Stephen PASCAL and Chris Gates, Appellants
v.
CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENT, and City of Pittsburgh and Northside Leadership Conference, Appellees

No. 22 WAP 2020

Supreme Court of Pennsylvania.

Argued: April 13, 2021
Decided: September 22, 2021


Timothy Jeffrey Leonard, Patricia L. McGrail, Maura Kathleen Perri, Ashley Puchalski, Esqs., McGrail & Associates, LLC, for Appellants.

Stuart Crawford Gaul Jr., Esq., Gaul Legal, LLC, David J. Montgomery, Esq., Montgomery Law, LLC, for Appellee Northside Leadership Conference.

Yvonne Schlosberg Hilton, John Hobart Miller IV, Esqs., City of Pittsburgh, Law Department, for Appellees City of Pittsburgh Zoning Board of Adjustment and City of Pittsburgh.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to consider whether the Commonwealth Court erred in approving a decision granting zoning relief despite: 1) the timing of the decision and 2) the alleged conflict of interest of one member of a three-member panel of the Pittsburgh Zoning Board of Adjustment (ZBA). We affirm in part and reverse in part, and remand for a new hearing before a different three-member panel of the ZBA.

259 A.3d 378

I. Background

Appellee, Northside Leadership Conference (NLC), is a non-profit community development corporation that owns contiguous real property at 404-410 East Ohio Street in Pittsburgh situated in a local neighborhood commercial zoning district designated for mixed use. The property consists of several attached three-story commercial buildings forming a single structure that formerly housed retail space, a restaurant and two dwelling units. On March 18, 2018, NLC applied for variances and special exceptions necessary to, inter alia , maintain the retail space, remodel and reopen the restaurant and permit the construction of six additional dwelling units.1

On May 17, 2018, a three-member panel of the ZBA, Alice B. Mitinger (Chair), LaShawn Burton-Faulk, and John J. Richardson, conducted a hearing on NLC's applications. Appellants Stephen Pascal and Chris Gates attended the hearing and objected to NLC's applications. At the end of the meeting, Chair Mitinger stated the parties could submit additional findings of fact and conclusions of law for a period of up to two weeks after the hearing transcript became available. On June 12, 2018, the parties submitted written proposed findings of fact and conclusions of law, and on August 23, 2018, the ZBA issued its final decision granting the variance and special exception applications subject to several conditions not applicable here. Appellants filed an appeal in the court of common pleas. Among other things, appellants alleged the zoning decision should be overruled because it was not timely decided.2 The trial court affirmed without taking any additional evidence, determining the zoning decision was timely and proper.

Appellants then appealed to the Commonwealth Court. Significantly, appellants alleged for the first time that ZBA member Burton-Faulk, who voted to grant NLC's requested variances and special exceptions, was also a member of NLC's Board of Directors.3 Appellants alleged

259 A.3d 379

the zoning decision should be overturned because Burton-Faulk did not recuse herself despite her clear conflict of interest. Appellants also repeated their claim the ZBA decision was untimely. The Commonwealth Court affirmed. See Pascal v. Zoning Bd. of Adjustment , 496 C.D. 2019, 2020 WL 973340, at *1 (Pa. Cmwlth., Feb. 28, 2020) (unpublished memorandum). The panel held the zoning decision was timely even though it was not entered within forty-five days of the hearing because the record did not close until the ZBA received the parties’ proposed findings of fact and conclusions of law several weeks after the hearing; additionally, the decision was announced within forty-five days after several additional agreed upon extensions of time, and thus the ZBA complied with the time limit for rendering a zoning decision under the Code. See id. at *3.

The panel also held that although ZBA member Burton-Faulk may have had a conflict of interest, the conflict did not require reversal without evidence that the conflict " ‘controlled or unduly influenced the other members of the [ZBA] in any manner which would raise doubts as to the validity of their votes.’ " Id. at *4, quoting Borough of Youngsville v. Zoning Hearing Bd. of Youngsville , 69 Pa.Cmwlth. 282, 450 A.2d 1086, 1091 (1982) (emphasis and alteration in original).

Appellants sought allowance of appeal and we granted review of the following questions:

(1) Whether the Commonwealth Court erred in affirming the trial court's order upholding the grant [to NLC] of the zoning relief requested despite the conflict of interest of ZBA member Burton-Faulk?

(2) Whether the Commonwealth Court erred in affirming the trial court's order upholding the grant to [NLC] of the zoning relief requested where the ZBA failed to issue a written decision within forty-five (45) days of the public hearing and where applicant did not agree in writing or on the record to an extension of time within forty-five (45) days of the public hearing?

Pascal v. City of Pittsburgh Zoning Bd. of Adjustment, ––– Pa. ––––, 240 A.3d 104 (2020) (per curiam ). We further directed the parties to state their positions or stipulate if possible as to whether Burton-Faulk served on the NLC Board of Directors during the ZBA proceedings below. The parties submitted a joint stipulation confirming Burton-Faulk "was a board member of the Northside Leadership Conference from the time of the Zoning Board of Adjustment proceedings on May 17, 2018 until the date the Zoning Board of Adjustment rendered its decision on August 23, 2018." Stipulation of the Parties, 11/23/20.

II. Timeliness of ZBA Decision

We first consider the second question granted, as the timeliness of the ZBA decision impacts the validity of its order granting relief, and by extension, the propriety of the subsequent court decisions affirming that order, which are implicated in the present appeal to this Court. As the issue involves statutory interpretation, our standard of review is de novo and our scope of review is plenary and non-deferential. See Crown Castle N.G. E. LLC v. Pa. Pub. Utils. Comm'n, ––– Pa. ––––, 234 A.3d 665, 674 (2020).

259 A.3d 380

Appellants assert the August 23, 2018 decision of the ZBA granting NLC's zoning applications was filed too late — ninety-eight days after the April 12, 2018 hearing — in violation of the Code's provisions requiring that a decision be filed within forty-five days of the hearing. Appellants observe the Code mandates a zoning application be deemed denied if this forty-five-day period is exceeded and there has been no agreement in writing or on the record to an extension of time. See Appellants’ Brief at 13, citing PITTSBURGH ZONING CODE §§ 922.07.C, 922.09.D (for both variance and special exception requests, the ZBA "shall act" on an application "within forty-five (45) days of the [ZBA] hearing ... unless the applicant has agreed in writing or on the record to an extension of time"). Appellants recognize Section 923.02.C of the Code provides " ‘[t]he [ZBA] shall adopt and maintain rules of procedure not inconsistent with the provisions of this Code.’ " Id. at 17, quoting PITTSBURGH ZONING CODE § 923.02.C. Appellants also recognize the parties here agreed to comply with ZBA procedures allowing the postponement of a decision until forty-five days after the record was closed, but nevertheless insist that any ZBA procedural rule, whether agreed to by the parties or not, that permits the filing of a ZBA decision beyond forty-five days of the hearing is materially inconsistent with the Code provisions, which must be strictly construed. See id. , citing Relosky v. Sacco , 514 Pa. 339, 523 A.2d 1112, 1116 (1987) ("procedural provisions of zoning statutes must be rigidly adhered to"). Appellants thus claim the zoning applications should have been deemed denied and the lower tribunals erred in upholding the ZBA decision granting zoning relief.

In response, appellees observe the ZBA's website states its decision will issue within forty-five days after the record is closed.4 In addition, all parties were advised at the close of the hearing that they would be permitted an additional two weeks following the production of the hearing transcript to file proposed findings of fact and conclusions of law, at which time the record would be closed. See Pascal , 2020 WL 973340, at *3, citing R.R., 5/17/18 at 99. According to appellees, all parties agreed to this procedure announced at the hearing, as well as several extensions of time after the record was closed, and the ZBA decision issued thereafter was thus timely.

There are three statutory provisions implicated here: 1) Section 922.07.C of the Code, which provides, in relevant part, that the ZBA shall hold a hearing on a special exception application, and "shall act" to approve or deny the application "within forty-five (45) days of the [ZBA]

259 A.3d 381

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1 practice notes
  • Brooks v. Ewing Cole, Inc., 4 EAP 2021
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 22, 2021
    ...of litigation, is immediately appealable under Rule 313.5 Likewise, we reject Brooks's suggestion that this case is not an appropriate 259 A.3d 375 vehicle to decide this issue because the Family Court did not incur any expenses in defending this case, as the interests sovereign immunity pr......
1 cases
  • Brooks v. Ewing Cole, Inc., 4 EAP 2021
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 22, 2021
    ...of litigation, is immediately appealable under Rule 313.5 Likewise, we reject Brooks's suggestion that this case is not an appropriate 259 A.3d 375 vehicle to decide this issue because the Family Court did not incur any expenses in defending this case, as the interests sovereign immunity pr......

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