Opinion
No. 759 C.D. 2011
08-10-2012
MCM Ventures, Ltd. v. Zoning Hearing Board of the Borough of Sewickley, Allegheny County, Pennsylvania Appeal of: Michael M. Lyons
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Michael M. Lyons (Lyons) appeals from an Order of the Court of Common Pleas of Allegheny County (trial court), which quashed two different appeals of Lyons for two different reasons. The Zoning Hearing Board (ZHB) of the Borough of Sewickley (Borough) denied the Motions to Quash filed by MCM Ventures (MCM) and the Borough, which sought to quash, as premature, Lyons' first appeal (First Challenge) challenging Ordinance No. 1283 (the Amendment) as spot zoning of MCM's property (Property). The trial court's order reversed the ZHB's determination and quashed Lyons First Challenge. Lyons subsequently filed a second appeal before the ZHB (Second Challenge), which also challenged the Amendment. The trial court's order quashed the Second Challenge as untimely after staying the proceedings before the ZHB. On appeal to this Court, Lyons' main arguments are that the trial court erred in exercising jurisdiction over the ZHB's determination because the determination was interlocutory and erred in quashing the Second Challenge, which was not properly before the trial court, because the ZHB had never acted upon it. Lyons also argues that the ZHB's determination regarding his standing to challenge the Amendment was substantively correct.
MCM owns a 3.79-acre Property in the Borough. The Property was located in an R-2 residential zoning district, which did not allow commercial uses. Since 1959, pursuant to a special exception, the Property was used as a 116-unit motel. On September 8, 2009, MCM sought use and dimensional variances that would allow it to tear down the buildings on the Property, subdivide the Property into three lots, and construct townhouses, an office building, and parking on the lots. By decision dated November 3, 2009, the ZHB granted the variances. Lyons and another individual appealed the grant of the variances to the trial court.
On December 15, 2009, the Borough Council (Council) directed the Borough Planning Commission (Planning Commission) to prepare the zoning change Amendment which, if adopted as an ordinance, would have substantially the same effect as the granted variances. At MCM's request, the trial court stayed Lyons' appeal of the variances pending the Council's action on the Amendment. The Council adopted the Amendment as Ordinance No. 1283 on July 19, 2010.
On August 11, 2010, Lyons filed a substantive challenge to the Amendment pursuant to Section 909.1(a)(1) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10909.1(a)(1), alleging that the Amendment constituted spot zoning (First Challenge). Lyons' First Challenge was scheduled to be heard by the ZHB on October 5, 2010.
Act of July 31, 1968, P.L. 805, as amended, added by Section 87 of the Act of December 21, 1988, P.L. 1329.
Section 916.2 of the MPC, 53 P.S. § 10916.2, provides a mechanism whereby a landowner wishing to take advantage of an ordinance or map may foreclose challenge to such ordinance or map by requesting a preliminary opinion from the Code Enforcement Officer. Pursuant to Section 916.2, on August 20, 2010, MCM requested such a preliminary opinion that its proposed use of the Property complied with the Zoning Code and the Amendment. In response, the Borough's Code Enforcement Officer issued a preliminary opinion (Preliminary Opinion) in MCM's favor. MCM published notice of the Preliminary Opinion in the Allegheny Times on August 26, 2010 and August 30, 2010. On October 5, 2010, MCM filed with the ZHB its Motion to Quash Lyons' First Challenge (Motion to Quash), arguing that the First Challenge was not ripe and, therefore, jurisdictionally defective because no permit or decision had been issued pursuant to the Amendment when Lyons filed the First Challenge.
Section 916.2 of the MPC was added by Section 99 of the Act of December 21, 1988, P.L. 1329, and provides a mechanism whereby a landowner wishing to take advantage of an ordinance or map may foreclose challenge to such ordinance or map, through the following provision:
In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he proposed to build is free from challenge, and recognizing that the procedure for preliminary approval of his development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to the ordinance or map will run under section 914.1 by the following procedure:
53 P.S. § 10916.2.(1) The landowner may submit plans and other materials describing his proposed use or development to the zoning officer for a preliminary opinion as to their compliance with the applicable ordinances and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a building permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.
(2) If the zoning officer's preliminary opinion is that the use or development complies with the ordinance or map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. The favorable preliminary approval under section 914.1 and the time therein specified for commencing a proceeding with the board shall run from the time when the second notice thereof has been published.
At the ZHB hearing on October 5, 2010, the parties discussed MCM's Motion to Quash. In addition to challenging the timeliness of the First Challenge, MCM also pointed out that any subsequent challenge to the Amendment would be untimely pursuant to Section 916.2 because of the Preliminary Opinion and the notices were published on August 26 and 30, 2010. Lyons testified that he had not heard about the Preliminary Opinion or the notices until the ZHB hearing. The parties agreed that, if the ZHB denied MCM's Motion to Quash, the merits of the First Challenge could be heard at the ZHB's December 7, 2010 meeting.
On November 2, 2010, the ZHB issued a determination denying MCM's Motion to Quash and continuing the hearing on the First Challenge to its December 7, 2010 meeting.
On November 3, 2010, Lyons filed with the ZHB his Second Challenge to the Amendment, which was substantially identical to the First Challenge and made no mention of the Preliminary Opinion or the notices thereof.
On November 16, 2010, MCM appealed to the trial court the ZHB's denial of its Motion to Quash and also filed a motion with the trial court requesting that it stay all proceedings before the ZHB. The ZHB responded that it would not have a quorum at the scheduled December 7, 2010, hearing. On December 2, 2010, the trial court issued an order staying proceedings before the ZHB and directing the parties to file their briefs, regarding MCM's appeal of its Motion to Quash, with the trial court by January 17, 2011. Lyons filed an appeal of the trial court's December 2, 2010 order staying proceedings before the ZHB to this Court on December 30, 2010; this Court quashed Lyons' appeal on January 11, 2011 because the December 2, 2010 determination was interlocutory and not otherwise appealable.
The trial court issued its opinion and order on March 31, 2011. In its opinion, the trial court held that Lyons' First Challenge was not ripe and that the ZHB, therefore, lacked jurisdiction to consider it. The trial court based this holding on City of Hermitage v. Zoning Hearing Board, 613 A.2d 612, 613 (Pa. Cmwlth. 1992) and Association of Concerned Citizens of Butler Valley v. Butler Township Board of Supervisors, 580 A.2d 470, 471 (Pa. Cmwlth. 1990), in which this Court held that changes to zoning ordinances are legislative acts which are not ripe for judicial challenge until a landowner applies for a building permit, uses, or develops the property pursuant to the rezoning. (Trial Ct. Op. at 2-3.) In addition, the trial court held that the Second Challenge was untimely pursuant to Section 914.1 of the MPC, 53 P.S. § 10914.1, because it was filed more than 30 days after the publication of the second notice of the Preliminary Opinion. Therefore, the trial court's order quashed both challenges and reversed the determination of the ZHB.
Section 914.1 of the MPC was added by Section 95 of the Act of December 21, 1988, P.L. 1329, and provides for the timeliness of appeals from zoning determinations:
(a) 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. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to section 709 or from an adverse decision by a zoning officer on a challenge to the validity of an ordinance or map pursuant to section 916.2 shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.53 P.S. § 10914.1.
(b) All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.
Lyons now appeals to this Court arguing that: (1) the trial court erred in exercising jurisdiction over MCM's appeal from the ZHB's denial of MCM's Motion to Quash because the ZHB's denial was an interlocutory order; (2) the trial court erred in quashing Lyons' First Challenge because Lyons was aggrieved by the Amendment itself, even though a permit had not been issued pursuant to the Amendment; and (3) the trial court erred in quashing Lyons' Second Challenge. This Court also recognizes that an issue exists regarding whether the trial court had jurisdiction over the Second Challenge.
"When a trial court reviewing the decision of a zoning hearing board takes no additional evidence, this Court reviews the zoning hearing board's decision only for an abuse of discretion or errors of law." Hamilton Hills Group, LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 n.6 (Pa. Cmwlth. 2010).
We first address Lyons' argument that the trial court erred in refusing to quash MCM's appeal from the ZHB's determination, dated November 2, 2010, in which the ZHB denied MCM's Motion to Quash the First Challenge. Lyons argues that the ZHB's determination was interlocutory and, therefore, not appealable. MCM and the Borough argue that the trial court properly considered the appeal from the ZHB's determination because the timeliness of the First Challenge was at issue and the ZHB's determination was in writing. For the following reasons, we hold that the ZHB's determination was interlocutory, not otherwise appealable and, therefore, the trial court erred in refusing to quash MCM's appeal of that decision.
Section 1002-A(a) of the MPC provides that appeals from "all land use decisions . . . shall be taken to the court of common pleas." 53 P.S. § 11002-A(a) (emphasis added). Section 107(b) of the MPC defines "decision," for purposes of Article X-A of the MPC, which includes Section 1002-A, as a "final adjudication of any board or other body granted jurisdiction under any land use ordinance or this act to do so, either by reason of the grant of exclusive jurisdiction or by reason of appeals from determinations." 53 P.S. § 10107(b) (emphasis added). The MPC does not define what constitutes a final adjudication, but longstanding case law generally defines a final order as one which "(1) ends the litigation or disposes of the entire case; (2) effectively puts a litigant 'out of court'; or (3) precludes a party from presenting the merits of his or her claim." Holmes v. Board of Zoning Appeals, 568 A.2d 301, 302 n.1 (Pa. Cmwlth. 1990). The ZHB's determination of November 2, 2010, refusing to quash the First Challenge satisfied none of these criteria. The ZHB's determination allowed the litigation to continue, did not put any party out of court, and would have allowed Lyons to present the merits of his case. Therefore, this determination was not one which might be appealed to the trial court pursuant to Section 1002-A of the MPC.
Added by Section 101 of the Act of December 21, 1988, P.L. 1329.
This definition also finds persuasive support in Title 2 of the Pennsylvania Consolidated Statutes, entitled "Administrative Law and Procedure," which encompasses the Administrative Agency Law, 2 Pa. C.S. §§ 501 - 508, 701 - 704, and the Local Agency Law, 2 Pa. C.S. §§ 551 - 555, 751 - 754. Section 101 of Title 2 defines "adjudication," in relevant part, as "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made." 2 Pa. C.S. § 101.
MCM cites cases from this Court, such as City of Philadelphia v. Frempong, 865 A.2d 314, 317 (Pa. Cmwlth. 2005) and Snyder v. Zoning Hearing Board of Warminster Township, 782 A.2d 1088, 1090 (Pa. Cmwlth. 2010), for the proposition that the timeliness of an appeal may be raised at any stage of the proceedings, by any party, and that an untimely challenge should be quashed as soon as the defect is apparent. These cases, however, do not stand for the principle that an appeal may be taken from an interlocutory order determining that an appeal is timely. Neither MCM nor the Borough cites authority for such a proposition, and this Court has not been able to find any.
In Frempong, this Court considered whether a landowner's appeal from a trial court's grant of preliminary injunction was timely where the landowner filed his appeal more than 30 days after the trial court's order. Frempong, 865 A.2d at 317. This Court determined that, per Pa. R.A.P. 311(a)(4), an order granting a preliminary injunction is appealable as of right but, per Pa. R.A.P. 903(a), such an appeal must be taken within 30 days of the order. Id. at 316-17.
In Snyder, neighbors appealed from a trial court's decision holding that a landowner's use in a given zoning district was permitted. On appeal from the trial court's final order, the landowner argued that the neighbors' appeal from the zoning board's decision was untimely. Snyder, 782 A.2d at 1090. This Court held that the appeal from the zoning board's decision was, in fact, untimely and remanded the matter to the trial court to quash the appeal. Id.
MCM also argues that Section 1002-A of the MPC requires that an appeal of a zoning board's decision be taken within 30 days of the decision and that it, therefore, had to appeal the November 2, 2010, determination within 30 days. As discussed above, however, the ZHB's November 2, 2010 determination was not a "decision" as defined for purposes of Section 1002-A, by Section 107(b). Similarly, because the November 2, 2010 determination was not a decision, there is not statutory authority under the MPC for MCM to appeal this determination to the trial court.
For these reasons, MCM's appeal from the ZHB's determination of November 2, 2010, refusing to quash the First Challenge on the basis of timeliness, was an impermissible appeal of an interlocutory order and the appeal, therefore, should have been quashed.
We next address Lyons' argument that the trial court erred in quashing the Second Challenge. Lyons argues that MCM cannot rely on Section 916.2 to show that his Second Challenge was untimely because the notices of the Preliminary Opinion were not properly advertised.
Before we address Lyons' substantive arguments, we note that, as Lyons points out in his Reply Brief, the ZHB never acted on his Second Challenge. (Lyons' Reply Br. at 10.) The ZHB issued its determination on the timeliness of the First Challenge on November 2, 2010. Lyons filed his Second Challenge on November 3, 2010. MCM appealed from the determination of the ZHB dated November 2, 2010. The trial court stayed all proceedings before the ZHB and, therefore, the ZHB never made any determination with respect to the Second Challenge. Because the ZHB made no determination regarding the Second Challenge and because the determination that MCM appealed to the trial court did not involve the Second Challenge, the trial court had no jurisdiction over the Second Challenge. This Court, therefore, must reverse the trial court's order quashing Lyons' Second Challenge.
Moreover, we believe that the trial court erred in holding that the Second Challenge was untimely. The trial court relied on Section 914.1(a) of the MPC in determining that the Second Challenge was untimely because Lyons filed the Second Challenge more than 30 days after the publication of the second notice of the Preliminary Opinion. However, the running of the 30-day time period under Section 914.1(a) is governed, in this case, by the provisions of Section 916.2 of the MPC.
Section 916.2 provides that a "landowner may advance the date from which time for any challenge to [an ordinance] will run under section 914.1" by submitting materials describing the landowner's planned use to a zoning officer for a preliminary opinion as to their compliance with the applicable ordinance, as MCM did in this case. 53 P.S. § 10916.2. If the zoning officer grants preliminary approval, "notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the municipality" and the 30-day time period under Section 914.1(a) "shall run from the time when the second notice thereof has been published." 53 P.S. § 10916.2(2). In other words, pursuant to Section 914.1(a), a landowner may use Section 916.2 to secure a preliminary decision that its tentative plans comply with a zoning ordinance or map and, if properly advertised, this preliminary opinion will start the 30-day time period within which a substantive challenge must be made to the relied-upon zoning ordinance or map by any objector. However, if the landowner does not fulfill the statutory requirements of Section 916.2, the time period under Section 914.1 will not begin to run.
In this case, MCM requested a Preliminary Opinion, which was granted by the Code Enforcement Officer on August 20, 2010 and notice of the Preliminary Opinion appeared in the Allegheny Times on August 26, 2010, and August 30, 2010. As Lyons points out in his Reply Brief, Section 916.2 provides that the notices pursuant to that section must be published "once each week for two successive weeks." 53 P.S. § 10916.2(2) (emphasis added). Section 1909 of the Statutory Construction Act of 1972 provides that when a statute uses the term "successive weeks" for the purpose of publication of notice, "at least five days shall elapse between each publication." 1 Pa. C.S. § 1909. The two notices of the Preliminary Opinion were published only four days apart, on August 26, 2010, and August 30, 2010. Thus, the requirements of Section 916.2(2) were not satisfied so that the 30-day time period provided by Section 914.1(a) might begin to run. Because the time period had not begun to run, the Second Challenge could be construed as a timely challenge to the Preliminary Opinion.
We note that to the extent that Association of Concerned Citizens of Butler Valley, 580 A.2d at 471, could be read to require a permit or decision be issued before a substantive challenge to the Amendment could be brought, the issuance of the Preliminary Decision granting preliminary approval could satisfy such a requirement.
MCM argues that the defect in the publication of the notices is irrelevant because it was not explicitly cited in the Second Challenge as a basis for the Second Challenge's timeliness. Section 914.1(a) provides that a person seeking to appeal the approval of an application for development more than 30 days after such an approval must allege and prove that "he had no notice, knowledge, or reason to believe that such approval had been given." 53 P.S. § 10914.1(a). However, because the notices were not properly published pursuant to Section 916.2, time never began to run pursuant to Section 914.1. Therefore, Section 914.1 does not require that Lyons allege in his Second Challenge that he did not have actual notice of the Preliminary Opinion; Section 916.2 does not operate to even impute constructive knowledge upon Lyons due to the defect in the publication of notice. Therefore, we would conclude that the Second Challenge was timely.,
We note that MCM also argues that Lyons waived the issue of the compliance of the notices with the requirements of Section 916.2 because Lyons did not raise this issue before the trial court. Because the trial court did not have jurisdiction, it is irrelevant whether Lyons preserved this issue before the trial court.
It is not clear that Section 916.2 would operate to bar Lyons' challenge to the Preliminary Opinion. In this case, when MCM applied for the Preliminary Opinion, Lyons had already filed his First Challenge; while that challenge may have been premature, MCM was aware of the challenge and involved in the litigation before the ZHB to which it gave rise. MCM then obtained the Preliminary Opinion and notice was published in a newspaper, which, while it might qualify as a newspaper of general circulation, Lyons argues it was not the newspaper that would have given notice to members of the community in general and Lyons in particular. Notably, MCM made no effort to notify Lyons specifically of the Preliminary Opinion. The purpose of public notice is to ensure procedural due process, not to preclude public participation or the participation of interested parties, as this Court explained in In re McGlynn:
The statutory notice and publication requirements are to ensure the public's right to participate in the consideration and enactment of municipal land use decisions. In other words, the notice provisions protect procedural due process. The concept of due process, however, is a flexible one and imposes only such procedural safeguards as the situation warrants. Demonstrable prejudice is a key factor in assessing whether procedural due process was denied.
For these reasons, we vacate the trial court's Order and direct the trial court to remand this matter to the ZHB to consider the merits of Lyons' First Challenge and Second Challenge.
Due to our holdings that the trial court did not have jurisdiction to consider the First Challenge or Second Challenge, we do not reach Lyons' arguments that the trial court improperly refused to accept his additional briefs. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, August 10, 2012, the Order of the Court of Common Pleas of Allegheny County (trial court) is hereby VACATED, this matter is remanded to the trial court, and the trial court is hereby directed to REMAND this matter to the Zoning Hearing Board of the Borough of Sewickley for further proceedings consistent with this opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge
McGlynn, 974 A.2d 525, 532 (Pa. Cmwlth. 2009) (citations omitted). In this case, obscure publication of notice of the Preliminary Opinion would have demonstrably prejudiced Lyons' efforts to challenge the Amendment and might arguably have denied his right to due process. However, because, as discussed above, the notice was not sufficient to satisfy the statutory requirements of Section 916.2, we do not need to reach this question.