SEIPSTOWN VILLAGE v. ZON. HEARING BD.

• Decision Date: 31 August 2005
• Citation: 882 A.2d 32
• Parties: SEIPSTOWN VILLAGE, LLC and Lloyd Roberts, Appellants v. ZONING HEARING BOARD OF WEISENBERG TOWNSHIP, Lehigh County, Pennsylvania and Weisenberg Township, Harry A. Lande, Brian Landers, Scott Searcy, Brad Alden, Darta Alden, Randall Huff, Judy Huff, Sherwood Zettlemoyer, Iris Butz, John Kleinschuster, Dr. Alan Muto and Constance Walker.
• Court: Pennsylvania Commonwealth Court

882 A.2d 32

SEIPSTOWN VILLAGE, LLC and Lloyd Roberts, Appellants v. ZONING HEARING BOARD OF WEISENBERG TOWNSHIP, Lehigh County, Pennsylvania and Weisenberg Township, Harry A. Lande, Brian Landers, Scott Searcy, Brad Alden, Darta Alden, Randall Huff, Judy Huff, Sherwood Zettlemoyer, Iris Butz, John Kleinschuster, Dr. Alan Muto and Constance Walker.

Commonwealth Court of Pennsylvania.

Argued June 6, 2005.

Decided August 31, 2005.

James T. Huber, Allentown, for appellants.

Maria C. Mullane, Allentown, for appellee, Zoning Hearing Board of Weisenberg Township.

F. Peter Lehr, Allentown, for appellee, Weisenberg Township.

BEFORE: SMITH-RIBNER, Judge, and LEAVITT, Judge, and JIULIANTE, Senior Judge.

OPINION BY Judge LEAVITT.

Lloyd Roberts and Seipstown Village, LLC (collectively, Developer)¹ appeal from an order of the Court of Common Pleas of Lehigh County (trial court) that denied Developer's land use appeal. In this case we consider the authority of the Weisenberg Township Zoning Hearing Board (Board) to reopen the record following an oral decision interpreting a provision of the Township's zoning ordinance in Developer's favor. We also consider whether Developer was entitled to a variance as a form of alternative relief. The trial court affirmed the final written decision of the Board rejecting all of Developer's claims.

Developer owns a 28-acre parcel of land located in the Township's Village Center Zoning District (Property).² On March 4, 2004, Developer filed a preliminary land development plan (Plan) for a project it called "Hassen Creek Village." Developer proposed to construct twelve separate apartment buildings with accessory on-site parking areas, with each building to contain either fourteen or eighteen individual apartment units, for a total of 192 apartment units. However, the Plan proposed to maintain the Property as one contiguous lot, under common ownership, and not to subdivide it.

On March 15, 2004, the Township zoning officer issued an opinion determining that the Plan was not in compliance with Section 1403.02 of the Ordinance,³ which states that "[a] plot plan shall show a separate lot for each dwelling." ORDINANCE § 1403.02. Developer appealed to the Board and requested a determination that Section 1403.02 is ambiguous and inapplicable to the Plan. Alternatively, Developer requested a variance from Section 1403.02.

The Board held a duly advertised public hearing on May 12, 2004. A number of Township residents (Objectors) appeared at the hearing to oppose Developer's zoning appeal. Although Objectors were not represented by counsel, they signed entry of appearance forms and were sworn in at the beginning of the hearing.

Developer presented the testimony of Larry Turoscy, a registered professional engineer and surveyor who prepared the Plan. Turoscy testified that it would be possible to subdivide the Property into twelve lots, one for each of the buildings, and that Developer had in fact drafted such a subdivision plan for the Property. Developer ultimately opted to submit the Plan without plot lines because of what Turoscy described as "odd-shaped" lots and unnatural boundaries. Reproduced Record at 90a-91a (R.R. ___). Developer also presented the testimony of its managing partner and the Township's zoning officer.

At the conclusion of Developer's case, the Board recessed for an executive session. When it returned to the hearing room, the Board voted unanimously that Section 1403.02 of the Ordinance was ambiguous and inapplicable to Developer's Plan.⁴ Following the Board's announcement, Terry Thomasco, one of the Objectors, complained that Objectors had not been given an opportunity to present testimony or arguments in support of their position. The Board acknowledged its oversight and heard questions and comments from several Objectors, notwithstanding that Developer and its representatives had left the hearing room.⁵ Although the Board members were unpersuaded by Objectors' comments, they agreed, on the advice of their solicitor, to continue the hearing until June 2, 2004, so that any Objectors who had been deprived of the opportunity to offer comments or testimony could do so. All parties in interest were duly notified in writing of the continued hearing and the meeting was publicly advertised.

At the continued hearing on June 2, 2004, Developer objected to the proceeding, contending that the Board's oral vote on May 12, 2004, constituted a final decision. Developer also objected to what it characterized as ex parte communications between Objectors and the Board that took place on May 12, 2004, after the oral vote was taken. The Board overruled the objections and heard extensive testimony from Objectors as well as arguments from counsel for both parties. At the conclusion of the hearing, the Board voted unanimously to rescind its oral vote of May 12, 2004, denying Developer's request for a favorable interpretation of Section 1403.02 or for a variance. A final, written decision was issued on June 22, 2004. Developer appealed to the trial court,⁶ which affirmed the Board's decision without taking additional evidence. Developer now appeals to this Court.

On appeal,⁷ Developer raises three issues. First, Developer contends that the Board improperly engaged in ex parte communications with Objectors at the May 12, 2004, hearing and after, Developer argues, the hearing was concluded; further, the Board lacked authority to reconsider its oral decision. Second, Developer argues that the Board erred in finding that Section 1403.02 is unambiguous. Third, Developer asserts that it was entitled to alternative relief in the form of a variance since Section 1403.02 creates an unnecessary hardship.⁸

In its first issue, Developer assails what it characterizes as the Board's improper reconsideration of its final, oral decision following the May 12, 2004, hearing. We disagree with Developer's premise that the Board's oral vote constituted a final decision for purposes of the Municipalities Planning Code (MPC).⁹

Under the MPC a "decision" is defined as a "final adjudication" of a zoning hearing board. Section 107(b) of the MPC, 53 P.S. § 10107(b). The board is required to render a "written decision" within 45 days after the last hearing, otherwise an applicant's application is deemed approved, and such decision must be personally delivered to the applicant or mailed to him. Sections 908(9)-(10) of the MPC, 53 P.S. §§ 10908(9)-(10). The decisional law of this Commonwealth confirms that a final order of a zoning hearing board must be reduced to writing. See, e.g., Mountain Protection Alliance v. Fayette County Zoning Hearing Board, 757 A.2d 1007, 1008 n. 1 (Pa.Cmwlth.2000) (where zoning hearing board orally denied applicant's request for special exception but failed to reduce its decision to writing, applicant's request deemed automatically granted under Section 908(9) of the MPC); Relosky v. Sacco, 514 Pa. 339, 523 A.2d 1112 (1987) (holding that the language of Section 908(9) of the MPC explicitly directs a zoning board to render a written decision). In light of the foregoing, we conclude that the Board's written decision dated June 22, 2004, was the official, final decision in this matter and not the oral vote taken May 12, 2004.

Once it is established that the Board's May 12, 2004, oral vote was not a final decision, it is clear that the Board did not improperly "reconsider" that decision.¹⁰ Rather, at that point in the proceedings, there was no decision to reconsider. The Board simply continued the proceedings to allow Objectors their opportunity to be heard, a right guaranteed to them under Section 908(5) of the MPC, 53 P.S. § 10908(5) (all parties before a zoning hearing board "shall be afforded the opportunity to respond and present evidence and argument."). The members of the Board were free to take this, or virtually any other action, up until the time they executed a final written decision. They certainly did not abuse their discretion in this case by correcting a glaring oversight within minutes of their oral vote and allowing Objectors an opportunity to present their case.¹¹

As part of its first issue, Developer argues that the discussion that ensued between Objectors and the Board at the conclusion of the May 12, 2004, hearing, after Developer and its representatives had departed, constituted improper ex parte communications in violation of Section 908(8) of the MPC. It provides as follows:

The board or the hearing officer shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved except upon notice and opportunity for all parties to participate, shall not take notice of any communication, reports, staff memoranda, or other materials, except advice from their solicitor, unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.

53 P.S. § 10908(8).

We disagree with Developer's characterization of the communications as ex parte. As indicated above, the Board's oral vote at the May 12, 2004, hearing did not constitute a final decision or operate to affect a formal close to the proceeding. The public hearing was still in session, and the Board, after realizing that it had foreclosed Objectors from presenting their case, moved quickly to correct its error while the record was still open. It was obligated to do so under the MPC, and we reject Developer's suggestion that it could frustrate Objectors' due process rights by beating a hasty retreat from the hearing room. Moreover, there is no indication that Developer was in any way prejudiced by the alleged ex parte communications at the May 12, 2004, hearing. The unanimous vote in Developer's favor remained unchanged after Objectors lodged their opinions, and one...