Opinion
No. 965 C.D. 2013 No. 1014 C.D. 2013
03-31-2014
George Family Limited Partnership v. South Union Township Zoning Hearing Board v. Phoebe Marano, William McNatt and Jennie McNatt, his wife, Paul Ruane and Abigail Ruane, his wife, Phillip Jones, and William Polito and Dolores Polito, Appellants
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This is a consolidated appeal from that part of the June 4, 2013 order of the Court of Common Pleas of Fayette County (Trial Court) that denied the Petition to Intervene filed by Phoebe Marano, William McNatt, Jennie McNatt, Paul Ruane, Abigail Ruane, Phillip Jones, William Polito, and Dolores Polito (collectively Prospective Intervenors).
This appeal stems from an application by the George Family Limited Partnership (Partnership) to the South Union Township Zoning Hearing Board (Board) for a special exception to build multi-family townhouses in an area of South Union Township zoned residential. Following a series of hearings, at which numerous neighbors raised objections, the Board denied the Partnership's application. (Board Hearing Transcript (BHT), September 21, 2010 and January 18, 2011.) The Partnership appealed the denial to the Trial Court. In an August 18, 2011 opinion and order, the Trial Court affirmed the Board in part and reversed the Board in part. (P.J. Solomon August 18, 2011, Op. at 5, 7.) The Trial Court affirmed the Board insofar as it had required the Partnership to apply for and receive a sewage module permit from the Pennsylvania Department of Environmental Protection and reversed the Board's determination that the development would have a hazardous effect on traffic in the area and on the Mulberry Street Bridge. (Id. at 6-7.)
Following the Trial Court's August 18, 2011 opinion and order, the Partnership applied for and received approval of its sewage planning module from the Pennsylvania Department of Environmental Protection. (November 6, 2012 Pennsylvania Department of Environmental Protection Southwest Regional Office Letter.) The Partnership then submitted a second application for a special exception to the Board. (December 16, 2012 Application.) On January 15, 2013, the Board held a hearing on the Partnership's second application and neighbors again objected to the application. (BHT, January 15, 2013.) At the close of the hearing, the Board voted three to two to deny the Partnership's second application on the grounds that the development would be detrimental to the health, safety, and welfare of the community. (BHT, January 15, 2013 at 79-80.) The Board issued a written opinion on January 18, 2013 stating that the "special exception is denied based on testimony by protestants in the audience that the development of four eight-unit multi-family dwellings on Mulberry Street will be detrimental to the health, welfare, and safety of the community." (January 18, 2013 Board Opinion.) The Partnership appealed the Board's decision to the Trial Court.
On May 6, 2013, the Trial Court issued an opinion and order in which it reversed the Board, finding that it had abused its discretion and erred as a matter of law, and granted the Partnership's application for a special exception. (P.J. Wagner May 6, 2013 Op. at 4.) The Trial Court reached its conclusion based on the fact that the Partnership had obtained the sewage module approval that its first application lacked and that the evidence in the record was insufficient to overcome its prior determination that the quantity of new traffic and its flow over the Mulberry Street Bridge was not detrimental to the community. (Id. at 3.) The Trial Court also highlighted the express findings by the Board that the application complied with South Union Township Zoning Ordinance requirements and that there was no factual finding in the Board's decision to support the conclusion that the special exception would be detrimental to the health, safety, and welfare of the community. (Id. at 3-4.)
On May 28, 2013, the Prospective Intervenors filed a petition to intervene and a motion for reconsideration of the Trial Court's May 6, 2013 order granting the Partnership's application for a special exception. On June 4, 2013, the Trial Court issued an opinion and order denying the Prospective Intervenors' petition to intervene. (P.J. Wagner June 4, 2013 Op.) In reaching its decision, the Trial Court concluded that the Prospective Intervenors' argument that the Board's defective procedure had prevented them from intervening until such a late date was unpersuasive and that, even if the Prospective Intervenors were permitted to intervene, it was clear from their pleadings that they had no new evidence to offer beyond the opinion evidence they had offered before the Board. (Id. at 3-4.) The Prospective Intervenors appealed to this Court.
"Although it is within the sound discretion of the trial court whether to grant intervention, a denial of intervention may be reversed where there has been manifest abuse of such discretion." Pennsylvania Association of Rural and Small Schools v. Casey, 531 Pa. 439, 443 n.3, 613 Pa. 1198, 1200 n.3 (1992). "A trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will." Id.
On appeal, the Prospective Intervenors argue that Section 908(10) of the Pennsylvania Municipalities Planning Code (MPC) places an affirmative duty upon the Board to give objectors notice of the Board's decision and that the Board failed to do so here, creating a procedural defect that renders their petition to intervene timely. 53 P.S. § 10908(10). The Partnership argues that Section 908(10) is directory, rather than mandatory, and that the Prospective Intervenors had actual notice of the Board's decision.
Act of July 31, 1968, P.L. 805, as amended 53 P.S. §§ 10101-11609.
It is not clear from the record that this argument was made before the Trial Court. Instead, it appears that the Prospective Intervenors argued that the Board had a duty under the MPC to notify objectors of a landowner's appeal of a board decision, an argument which this Court in Boerner v. Hazle Township Zoning Hearing Board, 845 A.2d 210, 213 (Pa. Cmwlth. 2004), squarely rejected. However, because paragraph seven of the Prospective Intervenors' May 28, 2013 petition to intervene is ambiguous as to whether they are arguing that they should have received notice of the appeal or notice of the Board's decision, and because both parties briefed the issue of notice of the Board's decision under Section 908(10) of the MPC, we treat the issue as though it has been preserved.
The Partnership also argues that under Pennsylvania Rule of Civil Procedure 2327 the Prospective Intervenors' petition must be denied because the matter they seek leave to intervene in is no longer pending. Pa. R.C.P. No. 2327. Due to our resolution of this appeal, we need not address this issue.
Section 908(10) of the MPC states:
A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to
him not later than the day following its date. To all other persons who have filed their name and address with the board not later than the last day of the hearing, the board shall provide by mail or otherwise, brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.53 P.S. § 10908(10) (emphasis added). As the Partnership argues, this Court has repeatedly held that the statement in the first part of Section 908(10) that a board's final decision shall be delivered or mailed to an applicant no later than the day following the date of the decision is directory and not mandatory. Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136, 139 (Pa. Cmwlth. 2009); Pae v. Hilltown Township Zoning Hearing Board, 385 A.2d 616, 618 n.1 (Pa. Cmwlth. 1978) ("Absent demonstrated injury to appellants, Section 908(10) of the MPC is directory only."); Limekiln Golf Course, Inc. v. Zoning Board of Adjustment of Horsham Township, 275 A.2d 896, 904 (Pa. Cmwlth. 1971) (en banc) ("[W]e have no hesitancy in concluding that the delivery or mailing requirement of clause (10) is directory rather than mandatory."). However, this line of cases is not determinative of the issue here, as these decisions address only the duty owed to the applicant under Section 908(10) of the MPC and do not address the duty owed by a zoning hearing board to the objectors.
The duty owed to the objectors under Section 908(10) of the MPC was addressed in Mihal v. Zoning Board of City of Hazleton, 545 A.2d 1002 (Pa. Cmwlth. 1988), and Clemens v. Zoning Hearing Board of Upper Gwynnedd Township, 281 A.2d 93 (Pa. Cmwlth. 1971) (en banc). In Mihal, this Court concluded that the board erred as a matter of law under Section 908(10) of the MPC, when it failed to provide notice of its decision to four objectors who had filed their names and addresses with the board before the final hearing. 545 A.2d at 1004. As a result of the board's failure, we held that the appeal filed by objectors was timely, even though it was filed after the thirty-day appeal period. Id. In reaching our holding in Mihal, we relied upon this Court's en banc decision in Clemens, which found timely an appeal filed by objectors after the thirty-day appeal period because there was no evidence in the record that the Board had given the objectors notice of its decision. Clemens, 281 A.2d at 95. As with the objectors in Mihal, the record in Clemens demonstrated that the objectors had filed their names and addresses with the Board. Mihal, 545 A.2d at 1004; Clemens, 281 A.2d at 95.
Here, by contrast, there is no evidence in the record that the Prospective Intervenors filed their names and addresses with the Board. Consequently, unlike the objectors in Mihal and Clemens, the Prospective Intervenors cannot succeed in tolling the appeal period on the basis that the Board failed in its duty under Section 908(10) of the MPC, because the Prospective Intervenors failed to take the steps necessary to trigger the Board's duty. Moreover, it is clear from both their pleadings below and the January 15, 2013 hearing transcript that the Prospective Intervenors had actual notice of the Board's decision, which, again unlike the objectors in Mihal and Clemens, was in their favor. (BHT, January 15, 2013 at 78-80.) The January 15, 2013 hearing transcript also makes clear that the Prospective Intervenors had actual notice of the thirty-day period in which the Partnership had to file an appeal and that the Partnership had taken an appeal from the Board's previous denial of its application. (Id., at 14-17, 78). This proceeding has traversed from the Board, to the Trial Court, and back again, and at no point along the way did the Prospective Intervenors take the steps available to them to become a participant; they cannot now attempt to do so because they do not like where the journey was ended.
The transcript from the January 15, 2013 hearing demonstrates that while several of the Prospective Intervenors testified about their objections to the Partnership's second application, only Mr. Polito even stated his address for the record. (BHT, January 15, 2013 at 32, 61, 69.) --------
Accordingly, the order of the Trial Court is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW this 31st day of March, 2014, the order of the Court of Common Pleas of Fayette County denying the petition to intervene filed by Phoebe Marano, William McNatt and Jennie McNatt, Paul Ruane and Abigail Ruane, Phillip Jones, William Polito and Dolores Polito in the above-captioned matters is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge