IN THE COMMONWEALTH COURT OF PENNSYLVANIA Harris J. Malkin and Dana M. Malkin, : Appellants : : v. : No. 2035 C.D. 2014 : Argued: June 18, 2015 The Zoning Hearing Board of The : Township of Conestoga, Lancaster : County, Pennsylvania and The Zoning : Officer of the Township of Conestoga, : Lancaster County, Pennsylvania : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE P. KEVIN BROBSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: July 7, 2015 Appellants Harris J. and Dana M. Malkin, husband and wife (Malkins), appeal from an order of the Court of Common Pleas of Lancaster County (trial court), (1) granting judgment on the pleadings in favor of Appellees the Zoning Hearing Board of the Township of Conestoga, Lancaster County, Pennsylvania (Board) and the Zoning Officer of the Township of Conestoga, Lancaster County, Pennsylvania; and (2) denying the Malkins motion for judgment on the pleadings. We affirm the trial court s order. On January 23, 2012, the Malkins submitted an application to the Board, seeking a variance that would allow them to exceed lot coverage limitations set forth in the Township s zoning ordinance (ordinance). The Board conducted hearings in January and February 2012. On April 10, 2012, the Board issued a written decision containing factual findings and legal conclusions, denying the Malkins variance request. The Malkins appealed the Board s order to the trial
court. On June 25, 2013, the trial court remanded the matter to the Board for the purpose of supplementing the record regarding storm water management on the Malkins property and issuing factual findings and conclusions of law. At the conclusion of a Board hearing on September 25, 2013, during which testimony was submitted, the Board declared the record to be closed. The Board met on October 30, 2013, for the purpose of rendering a decision on the variance request, and on October 31, 2013, the Board s attorney sent a letter to the Malkins advising them that the Board had decided to deny their variance request and that the Board would issue supplemental factual findings and conclusions of law. On December 4, 2013, the Malkins filed a complaint in mandamus, seeking a deemed approval of their variance request based upon the claim that the Board failed to comply with Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC). 1 The Malkins claimed that the issuance of a written decision without factual findings and legal conclusions failed to satisfy the requirements of Section 908(9) of the MPC, and, thus, entitled them to a deemed approval. The Board filed an answer to the complaint, and both parties filed motions for judgment on the pleadings. The trial court concluded that, under 1 Act of July 31, 1968, P.L. 805, reenacted and amended by the Act of December 21, 1988, P.L. 1329, 53 P.S. 10908(9). Section 908(9) of the MPC provides in pertinent part that [t]he board... shall render a written decision... within 45 days after the last hearing before the board. Section 908(9) of the MPC also provides that [w]here the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Finally, Section 908(9) of the MPC provides that where the board fails to render the decision within the period required by this subsection... the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time. 2
Section 908(9) of the MPC, a zoning hearing board s failure to render factual findings and legal conclusions does not result in a deemed approval. Rather, the Board s written decision advising solely of the ultimate conclusion i.e., denial of the variance request did not support the grant of judgment on the pleadings in favor of the Malkins. On appeal, 2 the Malkins raise the following issues: (1) whether the trial court erred in concluding that the failure of the Board to include factual findings and conclusions of law in its written denial of the Malkins variance request does not entitle the Malkins to a deemed approval under Section 908(9) of the MPC; (2) whether the trial court erred in failing to consider whether the Malkins were prejudiced for the purpose of filing an appeal by the failure of the Board to issue written factual findings and legal conclusions; and (3) whether the trial court erred in concluding that the October 31, 2013 letter written by the Board s attorney constituted a written decision that met the requirements of Section 908(9) of the MPC. The Malkins first claim that they are entitled to a deemed approval under Section 908(9) of the MPC, because the letter the Board s attorney sent to them on October 31, 2013 does not satisfy the requirement that a zoning hearing board issue factual findings and legal conclusions. As the trial court noted, in Mullen v. Zoning Hearing Board of Collingdale Borough, 691 A.2d 998 (Pa. Cmwlth. 1997), a decision virtually on all fours with this case, this Court 2 In reviewing an order of a trial court granting a motion for judgment on the pleadings, we may consider only whether the trial court erred as a matter of law and whether any material questions of fact are unresolved. Pfister v. City of Philadelphia, 963 A.2d 593, 596 n.7 (Pa. Cmwlth. 2009). 3
succinctly set forth the general rule regarding the requirements of Section 908(9) of the MPC: Within forty-five days of the last hearing on an application before a zoning board, the board must make a decision on the matter and that decision must be communicated to the applicant in writing. Otherwise, assuming the applicant has not agreed to an extension of time, and even if the applicant was informed orally of a decision, there is a deemed approval due to the untimeliness. It is not necessary that the decision be accompanied by the usual written appurtenances of an opinion.... Here, within the forty-five day period there was a definitive written notice to the applicant s counsel, signed by the Board s solicitor, of the Board s adverse decision. Under these circumstances, considering our discussion and the precedent cited, we hold that there was no deemed approval by the Board. We do not condone the Board s failure to take simple steps and we do not minimize the importance of an expeditious written decision by the Board itself, but we conclude that the solicitor s letter was sufficient to memorialize the decision made by the Board, satisfy the timeliness requirement and notify the applicant so that he could take an appeal. Mullen, 691 A.2d at 1001. This Court has concluded that while the issuance of a written decision informing an applicant simply of whether a request has been denied is mandatory, the provisions of Section 908(9) of the MPC requiring factual findings and legal conclusions are generally directory. See Morgan v. Zoning Hearing Bd. of Lower Salford Twp., 283 A.2d 95, 96 (Pa. Cmwlth. 1971) (holding that General Assembly only provided time requirement relative to written decision and not requirement for findings and conclusions). 3 4 In situations where a zoning 3 In addressing this specific statutory provision, we observed in Heisterkamp v. Zoning Hearing Board of the City of Lancaster, 383 A.2d 1311, 1313 (Pa. Cmwlth. 1978), that our (Footnote continued on next page )
board fails entirely to issue necessary factual findings, a trial court may remand the matter to a board for the development of necessary factual findings or in some circumstances render its own factual findings. Heisterkamp. The Malkins, however, cite our decision in Romesburg v. Fayette County Zoning Hearing Board, 727 A.2d 150 (Pa. Cmwlth. 1999), in support of their contrary position. Romesburg, however, is easily distinguishable from this case. In Romesburg, the landowner (a trust) submitted a request for a special exception for the purpose of extracting minerals on the subject property. The zoning hearing board in that case orally voted to approve conditionally the request and sent a letter to the landowner noting the conditional approval. The letter also indicated that any aggrieved person had the right to appeal the decision. The letter set forth no details regarding the conditions to which it referred. Rather, fifty-six days after the last board hearing, the board issued a resolution imposing eight conditions on the proposed extraction use. The board did not communicate the terms of the resolution to the landowner until 120 days after the last hearing. Based upon the board s delay in communicating the conditions, the landowner mailed a notice of deemed approval to the board under Section 908(9) of the MPC. Objectors to the deemed approval, including appellant Romesburg, appealed the landowner s notice of deemed approval to the trial court, seeking reversal of the deemed approval and reinstatement of the board-imposed conditions. The trial (continued ) Supreme Court in Garchinsky v. Clifton Heights Borough, 263 A.2d 467 (Pa. 1970), in analyzing similar language contained in the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, now consolidated at 8 Pa. C.S. 101-3501, rejected the notion that the forty-five day written decision requirement mandated more than written communication of the decision. 5
court concluded that the board s conditional approval did not constitute a decision for the purpose of deemed approval under Section 908(9) of the MPC and denied Romesburg s appeal. We noted that a zoning hearing board s decision does not need to contain findings of fact and conclusions of law in order to constitute a timely decision under Section 908(9) of the MPC, but a board must render a decision that provides for meaningful judicial review and affords an aggrieved party a sufficient basis to form and articulate an appeal. Id. at 153. In Romesburg, however, we found the board s decision simply approving unspecified conditions on the grant of the special exception to be too obscure for the [landowner] to determine its rights and obligations with respect to the special exception or to determine whether it was, in fact, an aggrieved party so it could file an appeal. Id. The failure of the decision to set definitive rights and obligations for all practical purposes left the landowner in the same status as before the Board s conditional approval, because the landowner could still not engage in mining or quarrying activities on its property. Id. Of key significance in Romesburg was the fact that the special exception decision at issue was not one where the board simply decided to grant or deny a zoning application. As we stated, [a] grant or denial of an application is certain, defined, final and immediately appealable. However, a conditional approval is uncertain, undefined and leaves matters unresolved; it is not final or immediately appealable because the parties cannot determine whether they even are aggrieved. Id. The Board s decision here was one that was definite and resolved the matter such that the Malkins knew they were aggrieved. Consequently, we conclude that the trial court did not err in concluding that the 6
Board s decision constituted one that satisfied the forty-five day requirement of Section 908(9) of the MPC. The Malkins next argue that the trial court erred in concluding that they were not prejudiced by the lack of factual findings. Citing Section 1002-A(a) of the MPC, 4 which provides a thirty-day appeal period in which a party aggrieved by a land use decision may appeal to the appropriate court of common pleas, the Malkins argue that the failure of the Board to render factual findings makes it impossible for them to file an appeal containing all specific legal and factual grounds for the appeal, as required by the appeal provisions of the MPC. In such appeals, however, an appellant may raise a Board s failure to render necessary factual findings as a basis for an appeal. Such a resolution squares soundly with our conclusion above regarding the deemed approval provision contained in Section 908(9) of the MPC. As the Township notes (and as we mentioned above), in Heisterkamp, this Court rejected a similar claim, noting that where a zoning hearing board fails to render factual findings, courts may in some instances make their own findings and rulings... or may order a remand for findings to be made. Heisterkamp, 383 A.2d at 1313 (citations omitted). Thus, we reject the Malkins claim that they are entitled to a deemed approval because they were allegedly prejudiced in their appeal on the merits by the lack of factual findings. Here, although the Board ultimately rendered factual findings on December 19, 2013, there was no doubt that the Board s solicitor s letter dated October 31, 2013, informed the Malkins at that time that the Board denied their request. Thus, at that time, the Malkins knew they were aggrieved by 4 Added by the Act of December 21, 1988, as amended, 53 P.S. 11002-A(a). 7
the Board s decision. The Malkins have advanced no rationale that would prevent them from raising the lack of factual findings and conclusions of law as a basis for reversal or remand to the Board for findings and conclusions of law. Accordingly, we reject this argument. The last issue the Malkins present is whether the letter the Board s solicitor sent to them on October 31, 2013, was sufficient under Section 908(9) of the MPC to constitute a written decision. The Malkins acknowledge that our decision in Mullen is controlling precedent, but they contend that the trial court s reliance upon that case is misplaced. First, the Malkins argue that Mullen did not address the question of whether an aggrieved party could articulate grounds for an appeal on the merits based upon the content of a solicitor s letter simply stating that a zoning hearing board had denied a variance request. 8 We believe this question mirrors the concerns the Malkins raised in their second issue, which we discussed immediately above. Although the Court in Mullen may not have addressed this precise issue, we believe that an appellant can raise the issue in an appeal on the merits. The Malkins next contend that we should not apply our precedent in Mullen based upon the decision of our Supreme Court in Wistuk v. Mt. Bethel Township Zoning Hearing Board, 925 A.2d 768 (Pa. 2007). As described by now-chief Justice Saylor, the issues in Wistuk were: [W]hether a landowner s acquiescence to the conduct of a meeting of a zoning hearing board to entertain written briefs, deliberate, and render a decision constituted a waiver of the statutory entitlement to a deemed approval of a special exception and variance, where the Board did not issue a written decision within forty-five days after the close of the evidentiary record. We also consider whether such a meeting constitutes a hearing for the purposes of the forty-five day requirement.
Wistuk, 925 A.2d at 769. In Wistuk, the last date upon which the board accepted evidence was September 30, 2003. The board in that case conducted a session on October 22, 2003, during which it deliberated, but did not accept any evidence. During that October 22, 2003 session, the board indicated that it would issue its written decision within forty-five days of that non-evidentiary session. The Supreme Court held that a session devoted to deliberation does not constitute the type of hearing that triggers the running of the forty-five day written decision requirement. Thus, the holding in Wistuk has absolutely no bearing on the issues in this case because there is no question here that the Board issued its written decision in a timely manner. In contrast to the facts in Wistuk, the Board in this case held its last evidentiary hearing on September 25, 2013, and issued its written decision (its solicitor s letter informing the Malkins of the denial of their variance request) on October 31, 2013, well within the forty-five day limitation period. Based upon the foregoing analysis, and particularly in light of this court s decision in Mullen, we affirm the trial court s order. 5 P. KEVIN BROBSON, Judge 5 In this case, we note that the Board issued an initial decision containing findings of fact and conclusions of law within the forty-five day limitation period. When the Malkins appealed the ZHB s order they apparently argued that alterations in their initial plan to the storm water management aspect of the plan could implicate consideration of their variance application as a de minimis dimensional variance. The trial court apparently remanded the matter for the purpose of taking additional evidence regarding the possible alternative grounds for relief. During oral argument before this Court, we raised the question of whether the distinct procedural posture of the matter i.e., an initial issuance of findings of fact and conclusions of law followed by a remand by the trial court might make the forty-five day limitation period contained in Section 908(9) of the MPC inapplicable to decisions by a zoning hearing board acting pursuant to a remand order. Although this is an interesting question, neither party has raised or addressed this issue in this appeal. Accordingly, we cannot resolve it here. 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Harris J. Malkin and Dana M. Malkin, : Appellants : : v. : No. 2035 C.D. 2014 : The Zoning Hearing Board of The : Township of Conestoga, Lancaster : County, Pennsylvania and The Zoning : Officer of the Township of Conestoga, : Lancaster County, Pennsylvania : O R D E R AND NOW, this 7th day of July, 2015, the order of the Court of Common Pleas of Lancaster County is AFFIRMED. P. KEVIN BROBSON, Judge