The Legal Intelligencer
(by Blaine A. Lucas and Alyssa E. Golfieri)
Pursuant to Section 901 of the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC), the state law establishing the framework for zoning and land use development regulations in Pennsylvania, every municipality in the commonwealth that enacts a zoning ordinance is required to create a zoning hearing board. A zoning hearing board is a quasi-judicial body that implements a system of checks and balances on a governing body’s legislative power to zone and regulate land development.
Zoning hearing boards have exclusive jurisdiction over eight discrete types of matters: substantive challenges to the validity of land use ordinances; appeals from the determination of a municipality’s zoning officer, including appeals from the granting or denying of a permit, the issuance of a notice of violation/cease and desist order, or the registration of nonconforming uses, structures, or lots; appeals from the administration of a floodplain provision or ordinance; applications for variances from the terms of a zoning or floodplain ordinance; applications for special exceptions under a zoning or floodplain ordinance; appeals from determinations related to the transfer of development rights or performance density provisions of a zoning ordinance; appeals from a zoning officer’s preliminary opinion on a proposed use or development; and appeals from a zoning officer’s or municipal engineer’s administration of any ordinances that regulates erosion and sedimentation control or stormwater management on projects unrelated to subdivisions, land developments, and planned residential developments.
Based on the exclusivity and scope of their jurisdiction, it is self-evident that zoning hearing boards have an integral role in assuring the fair and equal application of zoning and land use regulations across the commonwealth. Recognizing the important role zoning hearing boards play and the fact that such boards are in the best position to interpret and apply their municipality’s land use ordinances, appellate courts give a board’s findings and conclusions much deference. As a result, it is critical when appearing before a zoning hearing board that applicants, appellants, witnesses, and the zoning hearing board members themselves have a thorough understanding of the applicable procedural and evidentiary requirements. Failure to do so could result in an unsatisfactory result before the zoning hearing board with little to no recourse on appeal.
While not an exhaustive list, below are seven common procedural and evidentiary requirements or principles applicable to zoning hearing board hearings, many of which can easily get overlooked, misunderstood or misapplied:
- Notice of public hearings: All hearings before a zoning hearing board must be advertised in a newspaper of general circulation once a week for two successive weeks, not more than 30 and no less than seven days from the date of the hearing. Under Section 1909 of the Pennsylvania Statutory Construction Act, the phrase “successive weeks” means calendar weeks; publication upon any day of the week constitutes sufficient publication for that week, but at least five days must elapse between each publication. The public notice must state the time and place of the hearing and the particular nature of the matter to be considered.
Additionally, written notice must be provided to the applicant/appellant, the zoning officer, any other persons the governing body has designated to receive written notice, and any person who has made timely request for written notice. Written notice must be given at such time and in such manner as proscribed by ordinance. Finally, written notice must be conspicuously posted on the affected tract of land at least one week prior to the hearing.
- Formal rules of evidence do not apply: Formal rules of evidence do not apply in zoning hearing board hearings, but “irrelevant, immaterial, or unduly repetitious evidence may be excluded.” Evidence is relevant if “it logically tends to establish a material fact, makes a fact at issue more or less probable, or supports a reasonable in[ference] or presumption regarding the existence of a material fact,” as in Joseph v. N. Whitehall Township Board of Supervisors, 16 A.3d 1209, 1218-19 (Pa. Commw. Ct. 2011).
- Hearsay evidence admissible only if corroborated: Zoning hearing boards are not bound by strict rules against hearsay. However, the law is well-established that in zoning hearing board hearings “hearsay evidence, properly objected to, is not competent evidence to support a finding of the [board],” see Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Commw. Ct. 1976); see also In re Appeal of Little Britain Township, 651 A.2d 606, 615 (Pa. Commw. Ct. 1994). On the other hand, hearsay evidence, if corroborated, may be considered competent evidence upon which a zoning hearing board may fully rely, see also Lake Adventure Community Association v. Dingman Township Zoning Hearing Board, 79 A.3d 708, 714 n.4 (Pa. Commw. Ct. 2013). Hearsay objections are commonly raised, and usually sustained, in zoning hearing board proceedings when nonexpert members of the public reference internet articles, third party studies and the like, on the basis that the opposing party has been denied the opportunity to cross-exam the author.
- Discovery: When compared to other legal proceedings, options for discovery in zoning hearing board hearings are very limited. The MPC provides no authority to depose a witness, file interrogatories, or submit requests for production of documents. Discovery is only available via subpoena. Section 908(4) of the MPC provides that the “chairman or acting chairman of the [zoning hearing board] or the hearing officer presiding shall have power to … issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.”
It is important to note that although Section 908(4) confers subpoena power upon a zoning hearing board, it does not confer upon the board any enforcement powers to compel compliance or to hold a person or entity in contempt for the failure to do so. Accordingly, the holder of the subpoena is left to seek enforcement from the Court of Common Pleas, see Leonard v. Pennsylvania State Police, 558 A.2d 174 (Pa. Commw. Ct. 1989).
- Civil versus criminal designation of zoning hearing board hearings: Prior to 1988, the MPC authorized municipalities to adopt zoning ordinances with enforcement provisions that imposed imprisonment as a penalty for violation convictions or failure to pay fines. Due to the threat of imprisonment, zoning enforcement proceedings during this time were treated as criminal in nature. Accordingly, anyone subject to enforcement was afforded protection under the Pennsylvania Rules of Criminal Procedure.
However, in 1988 the General Assembly comprehensively amended the MPC and overhauled its enforcement provisions. It eliminated imprisonment as a permissible form of penalty for conviction or failure to pay a fine. Instead, a municipality can pursue the alleged violator of a zoning ordinance in a “civil enforcement proceeding,” and, if found liable, the violator can be required to pay a judgment of up to $500 for each day a violation continues, as well as court costs and reasonable attorney fees. In addition to civil enforcement actions, the MPC authorizes a municipality to pursue injunctive relief for zoning ordinance violations. The MPC requires a municipality to issue a detailed notice of violation to the property owner before pursuing either of these enforcement remedies, and also provides for appeals of such notices to the zoning hearing board. The General Assembly’s commentary on this amendment explains that the decriminalization of zoning enforcement proceedings “is deemed to be more in keeping with the nature of [zoning ordinance] violations and the reality that criminal prosecution for [such] violations are far from commonplace,” General Assembly of the Commonwealth of Pennsylvania, Local Government Commission, SB 353, PN 1880, Pennsylvania Municipalities Planning Code: Commentary for Proposed Amendments 1988 (April 1988).
Ten years after the comprehensive MPC amendment, the Pennsylvania Supreme Court cleared up any confusion still looming about the civil versus criminal nature of zoning enforcement proceedings in the Town of McCandless v. Bellisario, 709 A.2d 379 (Pa. Commw. Ct. 1998). In the Town of McCandless, the court explained that “while the enforcement of municipal ordinances that provide for imprisonment upon conviction or failure to pay a fine or penalty must follow the Rules of Criminal Procedure, the same is not true for municipal ordinances that do not provide for imprisonment upon conviction or failure to pay a fine or penalty … the higher degree of protection provided by the Rules of Criminal Procedure does not apply to municipal ordinance enforcement actions where imprisonment is not a remedy for a conviction or failure to pay a fine.”
- Fifth Amendment privilege against self-incrimination: The Fifth Amendment of the U.S. Constitution not only protects an individual against being involuntarily called as a witness against himself in a criminal prosecution, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, where the answers might incriminate him in future criminal proceeding,” see Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). As the Pennsylvania Supreme Court confirmed in Town of McCandless, zoning hearing board hearings are civil proceedings where imprisonment is not a remedy for conviction or failure to pay a fine. Therefore, witnesses called during a zoning hearing board hearing may “plead the Fifth,” but, due to the civil nature of the proceeding, must do so on the stand on a question-by-question basis, seePhiladelphia v. Fraternal Order of Police, Lodge No. 5, 521 A.2d 517, 519 (Pa. Commw. Ct. 1987).
- Standard of review on appeal: Pennsylvania courts have consistently recognized that land use appeals filed with the court of common pleas pursuant to Article X-A of the MPC challenging a zoning hearing board’s determination are not lawsuits, but rather statutory appeals. Consequently, appeals of a zoning hearing’s determination may not raise any issue not first raised before the zoning hearing board nor may a judge engage in fact finding, authorize discovery, or enter judgments, as in Human Development of Erie v. Zoning Hearing Board of Millcreek Township, 600 A.2d 658 (Pa. Commw. Ct. 1991).
A trial court’s scope of review in a land use appeal is limited to determining whether the zoning hearing board committed an error of law or abused its discretion, see Mars Area Residents v. Zoning Hearing Board, 529 A.2d 1198, 1199 (Pa. Commw. Ct. 1987). A zoning hearing board abuses its discretion when its findings are not supported by substantial evidence, i.e. such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, see Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637 (Pa. 1983). A trial court may no substitute its interpretation of the evidence for that of the zoning hearing board, see Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 (Pa. Commw. Ct. 2005).
Under Section 1005-A of the MPC, a trial court is only permitted to reopen the hearing record and take additional evidence not otherwise submitted before the zoning hearing board if moved by a party. In applying Section 1005-A, the Commonwealth Court has consistently held that, upon receipt of a motion to reopen the hearing record, a trial court faces compulsion to do so “only where the party seeking the hearing demonstrates that the record is incomplete because the party was denied an opportunity to be heard fully, or because relevant testimony was offered and excluded,” as in Kretschmann Farm v. Township of New Sewickley, 131 A.3d 1044, 1061 (Pa. Commw. Ct. 2016). If the hearing record is opened, then the standard of review changes and the court is required to make its own findings of fact.
Blaine A. Lucas is a shareholder and Alyssa E. Golfieri an associate in the public sector services and energy and natural resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. Lucas coordinates the firm’s representation of energy clients on land use and other local regulatory matters. He also teaches land use law at the University of Pittsburgh School of Law. Golfieri focuses her practice on zoning, subdivision, land development, code enforcement and public bidding matters.
*Reprinted with permission from the 6/21/18 issue of The Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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