Vacca v. Zoning Hearing Bd. of Borough of Dormont

• Decision Date: 02 May 1984
• Parties: Nicholas S. VACCA and Jennie C. Vacca, his wife, Appellants, v. The ZONING HEARING BOARD OF the BOROUGH OF DORMONT et al., Appellees.
• Court: Pennsylvania Commonwealth Court

Page 1329

475 A.2d 1329

82 Pa.Cmwlth. 192

Nicholas S. VACCA and Jennie C. Vacca, his wife, Appellants, v. The ZONING HEARING BOARD OF the BOROUGH OF DORMONT et al., Appellees.

Commonwealth Court of Pennsylvania.

Argued March 16, 1984.

Decided May 2, 1984.

George H. Hoffman, Pittsburgh, for appellants.

Phillip D. Paull, Pittsburgh, for Borough of Dormont.

Jack W. Plowman, Pittsburgh, for Mount Lebanon United Methodist Church.

Before CRAIG, BARRY and PALLADINO, JJ.

CRAIG, Judge.

Nicholas and Jennie Vacca appeal an order of the Court of Common Pleas of Allegheny County which affirmed the Dormont Borough Zoning Hearing Board's denial of their application for a use variance.

We must determine ¹ whether the board failed to render a timely decision and to give prompt notification of it to the applicant, and whether the court correctly concluded that the applicants did not carry their burden of proving unnecessary hardship.

The property, a lot at 3315 West Liberty Avenue, contains a two-story building designed as a single-family home. It is located in an R-1A zone which permits single-family residences only.

In February, 1979, Fred Gualtieri purchased the property for $42,900 for investment purposes. Shortly thereafter he applied for a variance to permit commercial use of the property. The Dormont Zoning Hearing Board denied his request and Gualtieri appealed to the Court of Common Pleas of Allegheny County.

On October 31, 1979, Gualtieri sold the property to Nicholas and Jennie Vacca for $50,000. The Vaccas also applied for a use variance, and the final board hearing was held on February 21, 1980. On April 3, 1980, the borough secretary mailed to the Vaccas the board's decision which was dated April 1, 1980, but was not signed. The members of the zoning hearing board signed the decision on April 17, 1980, and the Vaccas filed a notice of appeal with the Common Pleas Court of Allegheny County on April 30, 1980. The board received the court's certiorari on May 3, 1980, and returned its record on June 16, 1980.

The court ordered the Gualtieri and Vacca appeals consolidated, and a court-appointed referee heard the case on July 8, 1980. On December 11, 1981, the referee filed his proposed adjudication affirming the denial. This appeal is from the court's adoption of the referee's decision.

The Vaccas first argue that their appeal should be sustained because the Dormont Zoning Hearing Board did not comply with various procedural provisions of the Pennsylvania Municipalities Planning Code. ² They initially claim that the board did not render a timely decision as required by section 908(9) of the Code which provides, in part:

The board ... shall render a written decision ... within forty-five days after the last hearing before the board .... Where the board fails to render the decision within the period required by this subsection ... the decision shall be deemed to have been rendered in favor of the applicant.

53 P.S. § 10908(9).

The Vaccas contend that the decision was not actually rendered until the members of the board signed it on April 17, 1980, fifty-five days after the last hearing. Therefore, they conclude, the decision should be deemed to be in favor of the applicant.

This court has addressed similar issues on two occasions. In Packard v. Commonwealth, 57 Pa. Commonwealth Ct. 322, 426 A.2d 1220 (1981), we held that a letter which notified the property owner that his application was denied, and which was signed by the solicitor for the zoning board but not by any members of the board, was not so procedurally defective as to negate the validity of the decision. Although that case arose under a local ordinance, ³ the court found that the distinction between mandatory and directory provisions in section 908(9) of the Code, see Morgan v. Zoning Hearing Board of Lower Salford Township, 3 Pa. Commonwealth Ct. 362, 283 A.2d 95 (1971), was equally applicable to the policies of the local zoning code.

Hill v. Lower Saucon Township Zoning Hearing Board, 72 Pa. Commonwealth Ct. 381, 456 A.2d 667 (1983), involved similar circumstances arising under the Pennsylvania Municipalities Planning Code. We held there that a written decision was not made a nullity by the fact that it was signed only by the board's solicitor. We stated:

Under section 908(9) of the MPC, a zoning decision must be by either a zoning board or a hearing officer. Although section 908(9) requires that decisions be in writing, there is nothing in that section to indicate who must sign a decision, or even that a decision must be signed at all.

Id. at 385, 456 A.2d at 669.

Similarly, the fact that the board here did not confirm the written decision by signatures until later did not prevent it from being "rendered" before its issuance, within the forty-five day period.

The Vaccas' second procedural argument is that the board failed to provide them with prompt notification of its decision as required by section 908(10) of the Code which provides, in part:

A copy of the final decision ... shall be delivered to the applicant personally or mailed to him not later than the day following its date.

53 P.S. § 10908(10).

The decision was dated April 1, 1980, but was not mailed until April 3, 1980. However, in Heisterkamp, III v. Zoning Hearing Board of the City of Lancaster, 34 Pa. Commonwealth Ct. 539, 383 A.2d 1311 (1978), we held that section 908(10) is merely directory rather than mandatory, and the board's failure to comply strictly with its terms does not require a decision in the applicant's favor.

The third procedural contention is that the decision must be deemed to be in the applicant's favor because the board did not file the record with the court of common pleas within twenty days after receipt of certiorari notice, as required by section 1008(2) of the Code, 53 P.S. § 11008(2).

However, in Appeal of Crossley, 60 Pa. Commonwealth Ct. 351, 432 A.2d 263 (1981), we held that section 1008(2) is also directory rather than mandatory, and that without an express legislative declaration of deemed approval, procedural tardiness does not result in a favorable decision for the applicant. See also Beekhuis v. Zoning Hearing Board of Middletown Township, 59 Pa. Commonwealth Ct. 307, 429 A.2d 1231 (1981) (sixty-day maximum delay provision of section 1004(2) of the Code contains no deemed approval language and is therefore merely directory).

Turning to the merits of the case, we note that, in order to obtain a variance, the applicant must sustain the heavy burden of proving (1) that the ordinance imposes unnecessary hardship on the property; (2) that the hardship stems from unique physical characteristics of the property; (3) that the variance would not adversely impact on the health, safety or welfare of the general public; (4) that the hardship was not self-inflicted; and (5) that the variance sought is the minimum that will afford relief. Solow v. Zoning Hearing Board of Borough of Whitehall, 64 Pa. Commonwealth Ct. 414, 440 A.2d 683 (1982); 53 P.S. § 10912.

The Vaccas presented evidence indicating that a substantial portion of the neighborhood is currently being used commercially, and that their property is adjacent to a church on one side and a church parking lot on the other. The property faces a heavily traveled roadway which forms the boundary between the Borough of Dormont and the Township of Mt. Lebanon. The property across the avenue in Mt. Lebanon is zoned for...