Opinion
No. 2376 C.D. 2013
06-05-2015
Karen Batchelder, Walker and Sheila Brown, Rosemary Espanol, Charles and Pat Hilpl, Tina Pappajohn, Claudia Makadon Sauerteig and Andrew Sauerteig, Luca and Dawn Sena, Sarah Williams, Appellants v. Philadelphia Zoning Board of Adjustment, City of Philadelphia and Murray Development, LLC
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
This is the first of two related land use appeals involving adjacent city properties fronting on different streets and adjoined in the back. This appeal generally deals with procedural issues.
In particular, Objectors ask whether the Court of Common Pleas of Philadelphia County (trial court) erred in affirming a determination of the Philadelphia Zoning Board of Adjustment (ZBA) that rejected as untimely Objectors' challenge to a zoning permit issued by the Philadelphia Department of Licenses and Inspections (L&I). Objectors primarily assert the ZBA erred in dismissing their appeal as untimely without a hearing. For the reasons set forth below, we vacate the trial court's order and remand to the trial court. If Objectors still seek a hearing, the trial court may further remand to the ZBA for a hearing concerning whether Objectors' appeal of the permit was timely, and, if so, for a hearing on the merits.
Objectors are Karen Batchelder, Walker and Sheila Brown, Rosemary Espanol, Charles and Pat Hilpl, Tina Pappajohn, Claudia Makadon Sauerteig and Andrew Sauerteig, Luca and Dawn Sena, and Sarah Williams.
I. Background
Based on a very limited record, we set forth the following facts. In May 2012, Murray Development, LLC (Developer) acquired the property located at 513 Delancey Street (Delancey Street parcel) and the adjacent rear property at 516 Cypress Street (Cypress Street parcel) (collectively, the property) in the City of Philadelphia (City).
Because the ZBA did not hold a hearing, this case has a very limited record. In its letter determination dismissing Objectors' appeal as untimely, the ZBA made no factual findings.
According to Objectors, the property was improved with a single-family dwelling on the Delancey Street parcel and an accessory garden and parking area on the rear Cypress Street parcel. Objectors state that, in 1967, the then-owner of the Delancey Street parcel acquired the Cypress Street parcel from the predecessor to the Philadelphia Redevelopment Authority. Objectors maintain that the conveyance agreement limited the Cypress Street parcel to uses accessory to the Delancey Street parcel for a period of no less than 25 years.
Until 2013, Objectors indicate, the two parcels continued to be used together by subsequent owners. Objectors assert they are long-time residents of the same blocks of Delancey Street and Cypress Street as the property and could attest to the continued use of the two parcels as a single property until the 2012 sale to Developer. Objectors assert that, after the 2012 sale, they became concerned the new owner would attempt to develop the Cypress Street parcel as an independent property, which is exactly what later occurred.
After it acquired the property, Developer applied to L&I for a permit to allow it to demolish an existing one-story rear addition on the Delancey Street parcel and to construct a two-story rear addition that would include a roof deck, with the same footprint as the existing one-story addition. Developer listed the address as 513 Delancey Street. Objectors state Developer's application was silent as to the Cypress Street parcel and did not describe, as required, accessory uses on that parcel. Objectors allege the site plan submitted with the application also ignored the Cypress Street parcel. Apparently, Objectors state, the drafter calculated the lot area on the assumption that the depicted Delancey Street parcel was a separate, lawful lot.
L&I initially refused the application on the ground the proposal required a variance. Developer appealed to the ZBA, which held a hearing on the variance request. Objectors assert that at the hearing, Developer testified it was merely restoring the property to its pre-1973 condition. Objectors assert they attempted to raise an issue that the Delancey Street parcel and the Cypress Street parcel were used as a single property until Developer acquired the property in 2012, and to question whether permission to construct a second dwelling on the Cypress Parcel was the implicit result of the ZBA's decision. Repeatedly, Objectors assert, the ZBA quashed their attempts, advising Objectors the property lines would not be changed by a decision on the Delancey Street parcel application. Objectors assert they were not allowed to investigate the issue with Developer and were not permitted to make the claim that the Delancey Street parcel included the Cypress Street parcel. Based on a record that Objectors assert contained misrepresentations and fundamental omissions, the ZBA granted the variance to allow construction of a two-story addition to the dwelling on Delancey Street. No appeal from the ZBA's decision granting the variance was taken.
After obtaining the variance, Developer again applied to L&I for a zoning permit. In August 2012, L&I issued Zoning Permit No. 405342, approving a "TWO STORY REAR ADDITION WITH A ROOF TOP SUN DECK ACCESSORY TO A SINGLE FAMILY DWELLING." Reproduced Record (R.R.) at 20a. According to Objectors, Developer obtained a building permit and commenced construction. While this permitted construction was taking place, Objectors allege, Developer erected a brick wall, physically dividing the Cypress Street parcel from the Delancey Street parcel. By physically dividing the property, Objectors allege, Developer finally alerted Objectors that Developer intended to divide the property into two zoning lots. To Objectors, construction of the wall itself was not an issue. Rather, the wall showed Developer's intent to treat the property as two zoning lots, giving to the ZBA's approval the effect of legally separating the property into two lots.
In response, Objectors filed an appeal with the ZBA on February 5, 2013, challenging L&I's grant of the zoning permit. The ZBA did not hold a hearing on Objectors' appeal. Rather, by letter dated March 7, 2013, the ZBA notified Objectors their appeal was untimely and could not be accepted.
Objectors then filed an appeal with the trial court. The parties filed briefs and presented oral argument before the trial court. Objectors asserted the ZBA's final adjudication of Objectors' appeal in the absence of a hearing or other opportunity to present their case violated their due process rights. Moreover, they argued, absent findings of fact or any explanation to support the ZBA's decision, the trial court could not affirm the ZBA's determination that the appeal was untimely. Thus, Objectors sought a hearing before the trial court on the timeliness of their appeal or, alternatively, a remand to the ZBA.
Ultimately, the trial court issued an order dismissing Objectors' appeal. The trial court stated there was no evidence that the variance and permit were improperly issued. The trial court also stated if Objectors believed Developer exceeded the scope of the variance and the permit, their appeal to the trial court was not the proper forum.
The trial court subsequently issued an opinion in support of its order in which it explained:
The Philadelphia Code specifies that a party appealing a decision made by [L&I] must file the appeal with the ZBA within 30 days of the date of [L&I's] decision. Philadelphia Code §14 -303 (15)(a)(.3). Here, the ZBA granted a variance on July 18, 2012, and [L&I] issued the zoning permit to Developer
on August 2, 2012; however, [Objectors] did not file the appeal with the ZBA seeking the revocation of the permit until February 5, 2013. Thus, the appeal was untimely, and the ZBA appropriately dismissed the appeal as such.
[Objectors] assert that the appeal to the ZBA actually was timely because they filed it within a reasonable time of receiving notice, in the winter of 2012, that Developer allegedly had exceeded the scope of the zoning permit by beginning to construct the brick wall to bifurcate the lots. Appellants' Br. at 2. However, regardless of timeliness, [Objectors] failed to follow the proper procedure in pursuing their appeal of the alleged zoning permit violation. L&I is charged with enforcing compliance with the Philadelphia Administrative Code, including the rules related to zoning permits. Philadelphia Code §4-A-202.2. This includes the authority to enter and inspect or investigate when there is reasonable cause to believe a code violation exists, and ability to revoke a permit when a condition of a given permit has been violated. Philadelphia Code §401.2(2), §A-302.9(4). Here, [L&I] never made an inspection or decision with respect to whether the brick wall violated the bounds of the permit, and [Objectors] never requested such action. See [Notes of Testimony] 11/20/13 at 7-8, 13-19. A procedurally appropriate appeal could not be made to the ZBA without an underlying decision made by L&I. See Philadelphia Code §14-103; §14-303(15)(a)(.3). Thus, even if [Objectors] appeal to the ZBA were timely, the ZBA's dismissal of the attempted appeal was appropriate, as the alleged violation of the permit was not ripe for adjudication without some form of prior action by the [L&I].
Finally, [Objectors] assert that this [c]ourt inappropriately made findings of fact, including that there was 'no evidence that developers exceeded the scope of their variance and permit.' [Objectors' Pa. R.A.P. 1925(b)] Statement at 2. Significantly, this quotation appears to have been fabricated. It does not exist in the transcript from the hearing in this [c]ourt and is not a quotation from the [o]rder of November 25, 2013 disposing of this matter. The [o]rder does state that '[t]here is no evidence that the variance and permit were improperly issued[']; however, this is not a finding of fact but instead indicates that the grants of the variance and permit were procedurally proper, and that [Objectors'] due process
rights were not violated. Therefore, this [c]ourt did not err by making findings of fact, and the ZBA was appropriately upheld in this matter based upon the untimeliness of the appeal.Tr. Ct., Slip Op., 2/21/14, at 4-5 (footnotes omitted). This matter is now before us for disposition.
II. Discussion
A. Contentions
Objectors begin by asserting they sought to protect their homes, their community, and their investment-backed expectations by appearing and objecting to the development of 513 Delancey Street as a lot separate from 516 Cypress Street, which together were used for more than 50 years for a single-family residence and accessory uses. Objectors contend that, at a hearing on the variance for an addition to the dwelling at 513 Delancey Street, the ZBA denied Objectors the ability to raise the lot issues, and Developer was importantly silent on the development of 516 Cypress Street.
Objectors set forth three issues in their Statement of Questions Involved; however, the Argument section of Objectors' brief is not comprised of three corresponding sections. Thus, we set forth the assertions in the Argument section of Objectors' brief.
Objectors maintain that, when Developer built a brick wall across the property, they were alerted to the reason Developer originally failed to account for the Cypress Street parcel, and they appealed the zoning permit to the ZBA. Contrary to all manner of governing precedent, the ZBA refused to hold a hearing on Objectors' appeal, rejecting the appeal as late. Objectors argue they were entitled to a hearing before the ZBA, at which time Developer or the City could raise the timeliness issue. Then, based on a record, the ZBA could render a decision, affording all parties due process.
Objectors contend they appealed to the trial court, which misapprehended the appeal as a claim that Developer exceeded the scope of the zoning and building permits. While that may have well been the case, Objectors' appeal to the trial court was about the right to a hearing. Objectors assert the trial court, at oral argument, in its order, and in its opinion, couched the issue as Developer's violation of the scope of the permit. Objectors claim this error hindered the trial court in finding that the only correct decision was a remand to the ZBA to allow Objectors to present evidence and argument on the timeliness of their appeal.
Objectors argue the ZBA denied them a hearing despite the fact that the ZBA had jurisdiction to consider their appeal. Objectors contend L&I has the power to revoke a permit issued in error and issued on the basis of incorrect and inaccurate information supplied in the permitting process. In accordance with the Philadelphia Home Rule Charter and the Philadelphia Zoning Code (Zoning Code), the ZBA may hear appeals where error is alleged in any decision or determination by an administrative official in the enforcement of zoning ordinances. See Section 5-1006(1)(a) of the Philadelphia Home Rule Charter; Section 14-303(15)(a) of the Zoning Code. Further, the ZBA has all the powers of the officer from whom the appeal is taken. Section 5-1006(2) of the Philadelphia Home Rule Charter; Section 14-303(15)(a)(5) of the Zoning Code. Here, the ZBA must hear an appeal from L&I's action issuing a permit. Objectors maintain that the ZBA, therefore, had jurisdiction to hear Objectors' appeal and to revoke the permit if issued in error. R.R. at 77a.
Objectors further assert the ZBA could take no action without a hearing. The ZBA is a local quasi-judicial agency governed by the Zoning Code and the Local Agency Law, 2 Pa. C.S. §§551-55, 751-54. Pursuant to the Local Agency Law, the ZBA was required to provide Objectors a hearing. See 2 Pa. C.S. §553. Because Objectors were deprived a hearing, the ZBA's determination was invalid.
Nevertheless, even if the statute did not require a hearing, Objectors contend, the ZBA's determination that their appeal was untimely could not be based solely on calendar entries. Rather, the ZBA needed to develop a record to ascertain the date on which Objectors' right to appeal commenced. See, e.g., Soc'y Hill Civic Ass'n v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012). Further, even though the trial court should have remanded to the ZBA based on the procedural due process violation, the ZBA's decision denying the appeal was substantively wrong. Pennsylvania law extends the 30-day limit on appeals from L&I's issuance of a permit until an appellant has actual or constructive notice that an appeal is in order. See Highland Park Cmty. Club of Pittsburgh v. Zoning Bd. of Adjustment of City of Pittsburgh, 506 A.2d 887 (Pa. 1986); Graduate Hosp. v. Phila. Zoning Bd. of Adjustment, 474 A.2d 1228 (Pa. Cmwlth. 1984).
Objectors maintain in In re Appeal of Broad Mountain Development Co., 17 A.3d 434 (Pa. Cmwlth. 2011), this Court found an appeal period did not begin to run until the developer commenced construction activities that were inconsistent with the prior use of the property. See also Berryman v. Wyoming Borough Zoning Hearing Bd., 884 A.2d 386 (Pa. Cmwlth. 2005). Here, Developer built a wall that was inconsistent with the scope of the zoning permit and the testimony at the ZBA hearing. Only at that time were Objectors alerted to the error underpinning the permits. Neither the ZBA nor the trial court could conclude otherwise without a hearing to establish the timeliness of their claims.
Objectors further contend that where a complete record is made before an agency, a court reviewing the agency's decision considers the matter in its appellate role. However, where, as here, there is no record, Section 754(a) of the Local Agency Law states the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record. 2 Pa. C.S. §754(a). Because the trial court did not hold a de novo hearing, it had no alternative but to remand to the ZBA to hold a hearing, create a record, make a decision and issue findings of facts and conclusions of law. Objectors argue the trial court did not, and this Court should reverse the trial court and order a remand to the ZBA.
Developer responds that at the ZBA hearing in July 2013, it presented its case for a variance to replace a one-story addition with a two-story addition on the same footprint. Society Hill Civic Association and some objectors attended the hearing and opposed the addition. However, the ZBA granted the variance and issued a notice of decision that day. An appeal was not filed within the applicable 30-day appeal period.
Developer asserts that, after submission of a small administrative fee accompanied by a copy of the notice of decision, L&I issued a zoning permit. Developer then began construction, and at the time Objectors filed their appeal of the permit, Developer expended $300,000 renovating the Delancey Street parcel. If Objectors believed the wall should not have been built, they could have and still can request that L&I conduct an investigation. See Sections A-202.2 and A-401.2(2) of the Philadelphia Administrative Code. Objectors did not and have not. Developer argues it did not exceed the scope of any permit associated with its development of the Delancey Street parcel, and the ZBA and the trial court properly denied Objectors' appeal.
Developer contends the gravamen of Objectors' appeal is that the ZBA's notice of decision and L&I's permit were infirm because both were based on misrepresentations of the legal status of the property. Having failed to timely appeal the ZBA's decision granting the variance, Objectors appealed L&I's issuance of the zoning permit, more than five months after the right to appeal the zoning permit expired. The excuse offered for failing to timely appeal the permit was that the eventual observance of a brick wall on the Delancey Street parcel property line, triggered the realization that Developer intended not only to renovate the Delancey Street parcel, but also to develop the adjoining Cypress Street parcel. However, that understanding was addressed, discussed and apparently accepted by those attending the July 2013 ZBA hearing on the variance.
Developer maintains the ZBA properly denied Objectors' request for a hearing or remand because of untimeliness and because the notice of decision and the zoning permit were not issued in error. Developer agrees the ZBA could have provided Objectors with a hearing if their appeal was timely, or if the permit was issued in error. Br. of Intervening Appellee, Murray Development, LLC, at 9. However, it argues, there was no error here.
Like Developer, the City asserts Objectors did not pursue the clearest and most direct remedy of an appeal from the ZBA's decision granting the variance. The City contends the appeal form Objectors submitted to the ZBA, six months after the permit was issued, included three attached pages detailing Objectors' legal issues. Those issues related not to improper permit issuance by L&I, but to alleged improprieties with the variance granted by the ZBA. Moreover, in those pages Objectors never sought to file their appeal nunc pro tunc, never asserted lack of notice as a basis for extending the appeal period, and never even admitted the filing was late. The City recognizes the 30-day appeal period may be tolled for lack of notice, but it asserts it is the appellant's burden to assert and prove lack of notice.
The City further contends the general administrative law principles and cases Objectors cite do not support the result they seek. The mere filing of an appeal, well beyond the time allowed by rule, does not automatically entitle the filer to a hearing. The City argues it is an appellant's burden to set forth reasons for the late filing and petition to appeal nunc pro tunc in order to offer grounds for accepting a late appeal. Untimely appeals are not allowed by right but are subject to equitable discretion—which assumes the appellant has even made known such a request. Objectors did not.
The City also argues the ZBA lacks authority to revoke a permit. Further, L&I does not independently re-examine the ZBA's reasoning, and it lacks authority to revisit a ZBA decision when considering a permit request. Rather, L&I must enforce and apply the ZBA's decision to the particular application.
B. Analysis
In an administrative proceeding, the essential elements of due process are notice and an opportunity to be heard. Soc'y Hill Civic Ass'n. The issue of whether a party received due process must be examined in relation to the particular circumstances of each case. Id.
Further, pursuant to Section 553 of the Local Agency Law: "No adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard." 2 Pa. C.S. §553.
Section 14-303(15)(a)(.1)-(.3) of the Zoning Code states (with emphasis added):
(a) Appeals to [ZBA].
(.1) Any final order, requirement, decision, or determination made by L&I pursuant to this Zoning Code may be appealed to the [ZBA] by any person or organization affected by the decision ...
(.2) A recommendation by the Commission or by any agency or department of the City is not a final decision and may not be appealed. A pre-requisite approval by a commission, department, or agency of the City prior to the issuance of a zoning or building permit by L&I may not be appealed; however the issuance or refusal of the zoning or building permit may be appealed and the error cited in the appeal may include alleged errors by a commission, department, or agency in the completion of its pre-requisite review of the permit application.
(.3) Any appeal of an L&I decision must be filed with the [ZBA] within 30 days of the date of L&I's decision. Where the applicant fails to post the permit in compliance with § 14-303(6)(f) (Posting of Permits), any person other than the applicant must file any appeal within 30 days of constructive notice of the L&I decision. All appeals must be filed through a written notice of appeal stating specifically how L&I's decision is inconsistent with the requirements of this Zoning Code or the basis for the requested variance or other relief.
Id.
In addition, Section 5.5-1006(1)(a), (2) of the Philadelphia Home Rule Charter states (with emphasis added):
§ 5.5-1006. [ZBA].
(1) In accordance with any statute or ordinance as now or hereafter in force, the [ZBA] shall:
(a) Hear and decide appeals in zoning matters where error is alleged in any order, requirement, decision or determination made by an administrative official in the enforcement of zoning ordinances, regulations and maps;
* * * *
(2) In the exercise of its powers, the [ZBA] may reverse or affirm, wholly or partly, or modify, the order, requirement, decision or determination appealed from, and make such order,
requirement, decision or determination as ought to be made, and, to that end, it shall have all the powers of the officer from whom the appeal is taken.
Id.
Based on this authority, Objectors had a right to appeal L&I's issuance of the zoning permit to the ZBA. Indeed, although the trial court's opinion states that Objectors elected to pursue the wrong procedural remedy, the zoning permit itself states: " ANY PERSON AGGRIEVED BY THE ISSUANCE OF THIS PERMIT MAY APPEAL TO THE ZONING BOARD OF ADJUSTMENT (ZBA). FOR INSTRUCTIONS ON FILING AN APPEAL, PLEASE CONTACT THE ZBA AT 215-685-2429 OR 215-686-2430." R.R. at 20a (underlined emphasis added). The zoning permit also indicates it is: "SUBJECT TO REVOCATION IF FULL INFORMATION IS MISREPRESENTED OR NOT PROVIDED[.]" Id. Thus, Objectors could appeal issuance of the zoning permit to the ZBA.
In addition, as to the timing of Objectors' appeal of the permit, this Court previously observed:
As the cases indicate, the timing of an appeal by protestants can pose a severe problem. Neighboring property owners generally receive no notice that a permit has been issued. Their first knowledge of that fact is likely to be the commencement of construction. If protestants are to have a reasonable right of appeal, they should not be barred unless they had knowledge of the issuance of the permit in sufficient time to permit an appeal within the specified period. On the other hand, if an appeal is allowed after construction has progressed, the applicant may suffer a great loss. The [Municipalities Planning Code (MPC)]
resolves the difficulty in favor of the protestant, who is permitted to exceed the 30-day appeal limit if he 'alleges and proves that he failed to receive adequate notice' of the approval of the application .... Since there is no requirement that a zoning officer give notice of the approval of most zoning applications, the practical effect of the [MPC] is to permit an appeal by a protestant filed within 30 days of the issuance of a permit, or promptly after the protestant learns of its issuance.Oliver v. Bd. of License & Inspection Review, City of Phila., 761 A.2d 214, 217 (Pa. Cmwlth. 2000) (quoting 2 Robert S. Ryan, Pennsylvania Zoning Law and Practice §9.4.3) (emphasis added) (citation omitted).
In Graduate Hospital, we remanded to determine when the protestors had notice but we also went on to state that [t]hese comments, when speaking of the [MPC], apply with equal force to the appeal period applicable to Philadelphia.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202. Section 914.1(a) of the MPC, which was added by the Act of Dec. 21, 1988, P.L. 1329, provides, as relevant:
No person shall be allowed to file any proceeding with the board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate municipal officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given. ...
Thus, "where an objector proves he lacked notice of the issuance of the permit, the 30-day appeal period is tolled until he possesses knowledge or a 'reason to believe' the approval was granted." Broad Mtn., 17 A.3d at 441 (quoting Berryman, 884 A.2d at 389). When notice of a permit is not provided, the 30-day appeal period does not begin to run until the date when a landowner engages in construction activities, which are inconsistent with the previously permitted use of the property, and are visible to the general public. Berryman. It is the objectors' burden to prove their appeal is timely and that they lacked notice, knowledge, or reason to believe that approval was given. Broad Mtn. Thus, the objectors must establish when they received notice to effectively toll the 30-day appeal period. Id.
Further, as alluded to above in Oliver, while the MPC does not apply in Philadelphia: "[O]ur reasoning under the MPC cases as to the timeliness of an appeal have equal force to an appeal taken in Philadelphia even though not covered by the MPC." Id. at 217-18; see also Highland Park (where at least one of the protestants attested that he did not become aware of the permit more than 30 days before filing the appeal, the City of Pittsburgh Zoning Board of Adjustment, which is not governed by the MPC, properly allowed the appeal).
Here, in their appeal of the issuance of the zoning permit, Objectors alleged that, in furtherance of Developer's effort to create the false impression that there were two different zoning lots, "[Developer] has just recently built a high free-standing brick wall between the two tax parcels." R.R. at 24a (emphasis added). Objectors further asserted they were appealing L&I's issuance of the zoning permit because, "[t]he information set forth herein only recently has been brought to the attention of [Obiectors] and, thus, [Objectors] respectfully request that a public hearing be held concerning [the Delancey Street parcel] and/or that it be heard with the [a]pplication regarding [the Cypress Street parcel] now scheduled to be heard by the [ZBA] on February 13, 2013." R.R. at 25a (emphasis added). Based on those allegations, Objectors' arguments do not fail merely because they did not style their appeal as a petition to appeal "now for then" or nunc pro tunc. Rather, based on the allegations in Objectors' appeal, the ZBA should have afforded Objectors an opportunity to prove they lacked notice of the issuance of the zoning permit and to consider whether Objectors timely filed their appeal after they were aware or had reason to believe the zoning permit was issued.
Instead, the ZBA responded to Objectors' appeal with a letter determination in which it summarily rejected Objectors' appeal as untimely. R.R. at 26a. Thus, despite Objectors' allegations that they recently learned of the information that gave rise to their appeal, the ZBA did not afford Objectors a hearing on the issue of the timeliness of their appeal. As a result, the record contains no evidence, and the ZBA made no findings as to whether Objectors filed their appeal within 30 days of when they knew or had reason to believe the zoning permit was issued. Berryman.
At a hearing, Objectors would have the opportunity to prove their appeal was timely and that they lacked reason to believe the permit was issued. Thus, Objectors could prove, and the ZBA could determine, based on a fully developed record, when Objectors knew or had reason to believe (for example, when Developer engaged in construction activities that were inconsistent with the previously permitted use of the property and were visible to the general public) that a permit was issued, and whether Objectors filed an appeal within 30 days of that date.
In short, the ZBA erred in not affording Objectors a hearing on these factual issues. As a result, we vacate the trial court's order and remand to the trial court. Given our resolution of the substantive issues in the related appeal, it is unclear whether Objectors will want a hearing on remand. For that reason, the trial court may wish to hold a status conference.
In Holmes v. Board of Zoning Appeals of City of Scranton, 568 A.2d 301 (Pa. Cmwlth. 1990), cited by the City, this Court denied an objector's request for remand for an evidentiary hearing concerning a zoning hearing board's advertised notice of a variance application. However, in Holmes, the objector did not raise an issue regarding when in relation to her appeal she received notice; rather, she challenged the level of detail provided in the zoning board's advertised notice as well as the placement of a posted notice. Thus, Holmes is inapposite here. --------
If Objectors wish a hearing on the timeliness of their appeal of the permit, the trial court is authorized to order further remand to the ZBA for a hearing regarding the timeliness of Objectors' appeal of the permit. See Graduate Hosp. (remanding for development of an adequate record on issue of whether appellants filed a timely appeal to the ZBA from issuance of permit by L&I that allowed remodeling of building where record was unclear as to whether appellant acted promptly in filing appeal after receiving actual notice of proposed change). If the ZBA determines Objectors' appeal is timely under the principles set forth above, the ZBA should then consider the underlying merits of Objectors' appeal.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 5th day of June, 2015, the order of the Court of Common Pleas of Philadelphia County is VACATED and this matter is REMANDED for proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge
53 P.S. §10914.1(a) (emphasis added).