Opinion
No. 457 C.D. 2014
05-14-2015
Gail B. Wasserman, William S. McCullough, Jr., and Karen E. McCullough v. Borough of Ligonier v. Ligonier Valley YMCA Appeal of: Gay Gelb Wasserman, incorrectly identified as Gail B. Wasserman, William S. McCullough, Jr., and Karen E. McCullough
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Gay Gelb Wasserman, William S. McCullough, Jr., and Karen E. McCullough (Objectors) appeal from the February 21, 2014 Order of the Court of Common Pleas of Westmoreland County (trial court) granting the Borough of Ligonier's (Borough) and the Ligonier Valley YMCA's (YMCA) separate Motions to Quash Objectors' zoning appeal and dismissing Objectors' appeal. On appeal, Objectors' argue that the trial court erred by granting the Motions to Quash and dismissing their Notice of Zoning Appeal (Notice) because the Notice did not comply with the requirements of Section 1003-A(a) of the Pennsylvania Municipalities Planning Code (MPC) and because Objectors did not seek leave of court to amend the caption to correct Ms. Wasserman's first name. Because we conclude that the Objectors' Notice sufficiently set forth applicable legal authority and the specific grounds for Objectors' zoning appeal, we reverse and remand for proceedings on the merits of the appeal.
Ms. Wasserman was incorrectly identified in the caption of the Notice of Zoning Appeal filed with the trial court.
Act of July 31, 1968, P.L. 805, as amended, added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11003-A(a). Section 1003-A (a) provides:
(a) Land use appeals shall be entered as of course by the prothonotary or clerk upon the filing of a land use appeal notice which concisely sets forth the grounds on which the appellant relies. The appeal notice need not be verified. The land use appeal notice shall be accompanied by a true copy thereof.
On or about December 13, 2013, Objectors filed their Notice with the trial court which, in its entirety, provides as follows:
Appellants appeal from the decision of the Council of the Borough of Ligonier, and in support thereof state the following:
1. The appellant [Gay Gelb] Wasserman is an individual and the owner of premises at 212 North Fairfield Street, Ligonier Borough,
Westmoreland County, Pennsylvania, identified by Westmoreland County Tax Map No. 16-01-15-0-160.
2. The appellants William S. McCullough, Jr. and Karen E. McCullough are individuals and the owners of premises at 220 North Fairfield Street, Ligonier Borough, Westmoreland County, Pennsylvania, identified by Westmoreland County Tax Map No. 16-01-15-0-162.
3. The appellee is the Borough of Ligonier, a municipal corporation chartered by the Commonwealth of Pennsylvania, with its principal office at 120 East Main Street, Ligonier, Pennsylvania 15658. The governing body of the Borough of Ligonier is the Ligonier Borough Council (Council).
4. In May 2013 The Young Men's Christian Association of Ligonier Valley (YMCA) requested amendments to the Ligonier Borough Zoning Ordinance to accommodate a proposed building project.
5. The first amendment changed the zoning classification of two lots which the YMCA had just purchased, from Residential (R-1) to Commercial (C-2), and the second amendment permitted parking lots anywhere in the C-2 District.
6. The lots which were ostensibly rezoned and which are directly affected by the amendment regarding parking lots are adjacent to or within 200 feet of appellants' properties.
7. The Ligonier Borough Planning Commission recommended that the proposed amendments not be adopted.
8. At a regular Council meeting held on October 7, 2013, following a public meeting by the Ligonier Borough Planning Commission and a public meeting [sic] of the Ligonier Borough Council, Council considered and disapproved the two amendments by a vote of 4 to 3.
9. On October 29, 2013, Ligonier Borough Council held a special meeting advertised to reconsider its vote on the amendments to the zoning ordinance and to conduct general business which might be brought before Council.
10. At the special meeting Kim Shaffer, a member of Council, announced her reasons for disapproving the amendments and that due
to pressures placed on her and her family, she was resigning [as] a Council member.
11. The special meeting of Council was adjourned without Council taking any action on the amendments to the zoning ordinance or concerning her resignation.
12. At the next meeting of Council, which was a regular meeting held on November 14, 2013, the Council:
a. failed to acknowledge a statement by Shaffer that she was withdrawing her resignation;
b. voted to accept her resignation by a 3 - 3 vote, with the Mayor casting a deciding ballot to break the tie;
c. directed Shaffer to leave the Council table;
d. voted by a 3 - 3 vote to approve the zoning amendments which had been rejected at the October 7 meeting. The Mayor cast a deciding ballot in favor of accepting the amendments.
13. The action of the Ligonier Borough Council in approving the amendments was arbitrary, capricious, and void, as it did not follow prescribed procedures for enacting zoning ordinance amendments.
a. The proposed amendments had been rejected and no action had been taken on them for a period of more than [] 30 days. They were therefore no longer under consideration and could not be re[-]voted on.
b. For the Ligonier Borough Council to reconsider the amendments, the amendments would have to be resubmitted and new hearings held before they could be adopted.
(Notice, R.R. at R-2-R-4.) By order dated January 24, 2014, the trial court granted the YMCA's motion to intervene. Thereafter, the Borough and the YMCA filed separate Motions to Quash Objectors' Notice.
WHEREFORE, [Objectors] request[] that the Court reverse the cited action of the Ligonier Borough Council and direct that amendments rezoning the property of the YMCA and changing parking requirements are void.
The YMCA moved to dismiss Objectors' Notice because: (1) the Notice "failed to allege or cite any Pennsylvania statutory or other lawful basis upon which [the trial court] has jurisdiction or the authority to entertain an appeal or to grant relief to [Objectors] from the purely legislative decision of [the] Borough to amend its ordinances;" and (2) Objectors' appeal "is without merit and legal authority [upon] which [the trial court] can grant relief." (YMCA's Motion to Quash, R.R. at R-8.) The Borough moved to dismiss and quash Objectors' Notice because: (1) Objectors "have failed to cite any statutory [authority] or other lawful basis upon which this Appeal may be presented to the Court challenging a legislative decision of Ligonier Borough Council;" (2) Objectors have attempted to amend the caption without leave of the trial court; and (3) "[n]one of the matters relating to the resignation of a Council member arise under the provisions of the [MPC] and should not be permitted to remain in the within action which is styled as a 'Zoning Appeal' allegedly filed pursuant to the provisions of the [MPC]." (Borough's Motion to Quash, R.R. at R-11-R-12.)
The Borough's Motion to Quash also included a motion to remove Objectors' counsel due to a conflict in interest. (Borough's Motion to Remove Counsel, R.R. at R-12.) The trial court granted the Borough's motion and directed Objectors' counsel to recuse. Objectors then secured new counsel. The trial court's granting of the motion to remove counsel is not before this Court.
By Order dated February 21, 2014, the trial court granted the YMCA's and the Borough's Motions to Quash for the following reasons: (1) the Notice did not contain a signed verification as required by Rule 1024(a) of the Rules of Civil Procedure; (2) Objectors' efforts to amend the caption "were made without prior approval of the [trial] [c]ourt;" and (3) the Notice did not state or allege any specific legal authority, the applicable sections or requirements of the MPC or other relevant statute, the specific Borough ordinances violated, or specific facts to support Objectors' averments as stated in paragraphs 13(a) and (b) of the Notice. (Trial Ct. Order at 2.) In support of the third reason for dismissing Objectors' appeal, the trial court cited Gall v. Zoning Hearing Board of Upper Milford Township, 723 A.2d 758, 759 (Pa. Cmwlth. 1999) (holding "that failure to include the grounds for appeal in the land use appeal notice warrants dismissal of the appeal"). Accordingly, the trial court dismissed Objectors' appeal. Objectors filed a motion for reconsideration, which was denied by the trial court's March 7, 2014 Order. Objectors now appeal to this Court.
Pa. R.C.P. No. 1024(a). Rule 1024(a) provides that "[e]very pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified." Id.
"The decision to grant or deny a motion to quash an appeal is a question of law subject to this Court's review." Bradley v. Zoning Hearing Board of the Borough of New Milford, 63 A.3d 488, 490 n.3 (Pa. Cmwlth.), petition for allowance of appeal denied, 75 A.3d 1282 (Pa. 2013).
The crux of this matter is whether Objectors' Notice concisely sets forth the grounds upon which Objectors relied for the basis of their appeal as required by Section 1003-A(a) of the MPC. Objectors argue that the trial court, by granting the Motions to Quash, imposed an incorrect and higher standard than the law requires. Objectors assert that, pursuant to this Court's interpretation of Section 1003-A(a) of the MPC, they were not required to spell out every legal argument or cite to specific statutory authority; instead, Objectors were only required to identify the issues. Under this standard, Objectors' Notice clearly identifies a procedural challenge to the Borough's enactment of amendments to its zoning ordinance. Objectors contend that the first procedural challenge is based on the invalidity of the vote by Borough Council, which resulted from the Council's failure to acknowledge the withdrawal of a Council member's resignation and the resulting participation of the Mayor in casting a deciding vote on both the member's resignation and the YMCA's requests to amend the zoning ordinance. Objectors' second procedural challenge is based on the Borough's alleged failure to follow the statutory requirements for a public hearing, public notice, comment by the planning commission, and other procedures established for the enactment of zoning ordinance amendments under Sections 609 and 610 of the MPC at the time of the November 14, 2013 meeting.
Objectors also filed a notice of appeal from the trial court's March 7, 2014 Order. However, an appeal only lies from the trial court's February 21, 2014 underlying Order which Objectors timely appealed on March 20, 2014. See City of Philadelphia v. Glim, 613 A.2d 613, 616 n.1 (Pa. Cmwlth. 1992) (holding that "[a]n appeal lies only from the underlying order which the trial court refused to reconsider").
53 P.S. § 10609. Section 609 governs the enactment of zoning ordinance amendments.
53 P.S. § 10610. Section 610 governs publication, advertisement and availability of ordinances.
In response, the YMCA and the Borough argue that Objectors' Notice did not give proper notice to the trial court or either of these entities that Objectors intended to file a land use appeal pursuant to the MPC. The MPC is not referenced in the Notice. The YMCA and the Borough assert that, although the Notice sets forth various factual assertions, it does not "concisely set[] forth the grounds on which the appellant relies." Section 1003-A(a) of the MPC, 53 P.S. § 11003-A(a). The YMCA and the Borough argue that the Notice is a hybrid pleading that combines elements of a quo warranto action with a procedural/substantive validity challenge to the zoning ordinance amendments. The YMCA and the Borough assert that, rather than identifying any specific procedural defects, Objectors instead rely upon general statements and boilerplate allegations of alleged defects.
Section 1003-A(a) of the MPC provides that "[l]and use appeals shall be entered as of course by the prothonotary or clerk upon the filing of a land use appeal notice which concisely sets forth the grounds on which the appellant relies." 53 P.S. § 11003-A. As such, the trial court correctly recognized that the "failure to include the grounds for appeal in the land use appeal notice warrants dismissal of the appeal." Gall, 723 A.2d 759. "Boilerplate allegations or mere conclusory statements are insufficient to state a ground for appeal." DOMIJO, LLC v. McLain, 41 A.3d 967, 971 (Pa. Cmwlth. 2012).
In Perin v. Board of Supervisors of Washington Township, 563 A.2d 576, 579 (Pa. Cmwlth. 1989), this Court reviewed what the term "grounds" meant in the context of the MPC. Because the MPC did not define the term, we looked to the dictionary definition and held that, "although 'grounds' may include reasoning and conclusions, the indispensable element of an assertion of grounds for a legal action is an allegation of fact or facts that form the basis for the claim." Id. Since our holding in Perin, we have liberally construed Section 1003-A(a) of the MPC. Whitehall Fiduciary, LLC v. Zoning Hearing Board of the Township of Whitehall, 49 A.3d 945, 950 (Pa. Cmwlth 2012) (citing Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74, 82 (Pa. Cmwlth. 2004) and Summit Township Board of Supervisors v. Summit Township Zoning Hearing Board, 571 A.2d 560 (Pa. Cmwlth. 1990)).
In Summit Township, the appellant's notice of appeal from the zoning hearing board's decision incorporated the board's findings and conclusions by reference "and asserted that they were not supported by record evidence and were erroneous as a matter of law." Summit Township, 571 A.2d at 561. The trial court granted a motion to dismiss on the basis that the notice of appeal did not concisely set forth the grounds upon which the appellant relied for the appeal. Id. We disagreed and held that the appellant did concisely specify the legal grounds for appeal; therefore, no dismissal was warranted. Id. at 562.
In Great Valley School District, this Court rejected the contention that the appellant's appeals to the trial court should have been quashed based on lack of specificity in the notices of appeal. Great Valley School District, 863 A.2d at 82. There, the notice of appeal raised two issues. First, the appellant challenged the denial of a variance request by stating in the notice of appeal that "[t]his appeal is based upon the Board's failure to grant the requested variance, and the Board's failure to properly apply Hertzberg v. City of Pittsburgh, . . . 721 A.2d 43 ([Pa.] 1998) and other authorities cited by Appellant." Id. Second, the appellant challenged the denial of a special exception by stating in the notice of appeal that "[t]his appeal is based upon the failure of the [Board] to grant the requested special exception in accordance with the standards set forth in the [Ordinance], as well as applicable Pennsylvania law." Id. We concluded that these statements in the "notice of appeal set forth a sufficient legal basis or grounds to alert the trial court to the issues raised." Id.
Finally, in Whitehall, we agreed with the appellant that its notice of appeal sufficiently raised an argument based on a statute even though the notice "did not make a specific reference to the statute." Whitehall, 49 A.3d at 950. We held that "[i]t is not necessary in a notice of appeal for the appellant to spell out every legal argument but only to identify the issue." Id.
Reviewing Objectors' Notice in this matter within our precedent, which has liberally construed Section 1003-A(a) of the MPC, we conclude that dismissal was unwarranted. The Notice sufficiently sets forth the factual background that precipitated Objectors' appeal. The Notice describes the zoning amendments that were enacted by the Borough and the procedure or process leading up to the Borough's approval and enactment of these amendments. (Notice at ¶¶ 5-11, R.R. at R-2-R-3.) Based on the stated facts, the Notice then specifically avers as follows:
13. The action of the Ligonier Borough Council in approving the amendments was arbitrary, capricious, and void, as it did not follow prescribed procedures for enacting zoning ordinance amendments.
(Notice, R.R. at R-4.) Accordingly, although the Notice did not set forth the applicable sections of the MPC or other legal authority, the Notice did set forth allegations of fact that form the basis for the claims stated in paragraphs 13(a) and (b). In addition, the claims set forth in paragraphs 13(a) and (b) identify the procedural deficiencies Objectors aver occurred when the Borough approved the zoning amendments. Although the YMCA and the Borough contend that Objectors are impermissibly raising a quo warranto action and a substantive validity challenge, over which the trial court lacks jurisdiction, it is not for this Court, at this point in the proceedings, to determine whether the issues raised by Objectors have merit or are within the trial court's jurisdiction. The only issue before this Court is whether the trial court erred by quashing the Notice because it did not comport with Section 1003-A(a) of the MPC. On this issue, the trial court erred because the Notice "concisely sets forth the grounds on which" Objectors rely as a basis for their appeal, which are sufficient to alert the trial court to the issues raised.a. The proposed amendments had been rejected and no action had been taken on them for a period of more than [] 30 days. They were therefore no longer under consideration and could not be re[-]voted on.
b. For the Ligonier Borough Council to reconsider the amendments, the amendments would have to be resubmitted and new hearings held before they could be adopted.
Objectors also argue that the trial court erred by granting the Motions to Quash and dismissing their zoning appeal because the Notice lacked a verification as required by Rule 1024(a) of the Pennsylvania Rules of Civil Procedure. Because Section 1003-A(a) specifically provides that "[t]he appeal notice need not be verified," we agree that the trial court erred by dismissing Objectors' Notice because it did not contain a signed verification. 53 P.S. § 11003-A(a) (emphasis added).
The Borough and the YMCA offer no argument on this issue.
Finally, Objectors argue that the trial court erred by granting the Motions to Quash and dismissing the zoning appeal because they attempted to amend the caption on their Notice to correctly reflect that Ms. Wasserman's name was "Gay Gelb" rather than "Gail B." without leave of court. We agree. The Borough and the YMCA do not argue that they were not aware of who Ms. Wasserman was, and which property belonged to her. Moreover, the amendment was not an attempt to substitute a different party without leave of court. Thus, there was no prejudice to the Borough and the YMCA by permitting Objectors to amend the caption to accurately reflect Ms. Wasserman's first name. In addition, as Objectors point out, even if Ms. Wasserman was not a proper party due to the misspelling of her first name, as the Borough alleged, there was no allegation by the Borough that William S. McCullough, Jr. and Karen E. McCullough are not proper parties to the Notice. Therefore, the appeal as to the McCulloughs should not have been quashed for this reason.
The Borough and the YMCA offer no argument on this issue. However, on remand, the trial court should entertain a motion to amend the caption if Objectors file such a motion. --------
For the foregoing reasons, the trial court's February 21, 2014 Order granting the Motions to Quash is reversed and this matter is remanded for proceedings on the merits of Objectors' Notice.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 14, 2015, the February 21, 2014 Order of the Court of Common Pleas of Westmoreland County, entered in the above-captioned matter, is hereby REVERSED and this matter is REMANDED for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge