Grand Central Sanitary Landfill, Inc. v. Zoning Hearing Board

625 A.2d 115, 155 Pa. Commw. 273, 1993 Pa. Commw. LEXIS 267
CourtCommonwealth Court of Pennsylvania
DecidedApril 29, 1993
DocketNos. 252 and 260 C.D. 1992
StatusPublished
Cited by5 cases

This text of 625 A.2d 115 (Grand Central Sanitary Landfill, Inc. v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grand Central Sanitary Landfill, Inc. v. Zoning Hearing Board, 625 A.2d 115, 155 Pa. Commw. 273, 1993 Pa. Commw. LEXIS 267 (Pa. Ct. App. 1993).

Opinion

DOYLE, Judge.

This is a consolidated appeal from a decision by the Court of Common Pleas of Northampton County. That court held the Zoning Hearing Board of Plainfield Township (Board) had no jurisdiction to rehear a decision it had rendered on February 6, 1989, where there had been no appeal from that decision and the rehearing petition had not been filed until approximately one year later, even though the rehearing petition alleged that fraud and misrepresentations occurred at the original hearing.

The facts are as follows. In July 1987, Sarianne and Ernest Albanese complained to the Plainfield Township (Township) zoning officer that Grand Central Sanitary Landfill, Inc. (Grand Central), located on property adjacent to the Albaneses, was operating its landfill in violation of the 500 foot setback prescribed by the Township Zoning Ordinance. The zoning officer found that Grand Central was operating outside of the 500 foot setback, but determined that Grand Central’s landfill operation was a preexisting nonconforming use and therefore not subject to the ordinance setback requirements. The Albaneses’ appealed to the Board. On February 6, 1989, the Board affirmed the zoning officer’s decision. The testimony on which the Board relied to establish the age and size of the nonconforming use was offered by Nolan Penn, whose family owns the land and operates the landfill. Perm’s testimony consisted largely of oral statements about the Department of Environmental Resources (DER) permit filings, land use plans, business plans and maps which, according to Perm, showed that the tract adjacent to the Albaneses’ property was included as part of the landfill operation. No appeal was taken from the Board’s decision within the thirty-day time limit required by the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202 (MPC).

After some delay in receiving the Board’s written decision, the Albaneses’ took steps to ascertain the truth of Perins’ [276]*276statements. They searched local land use filings and DER records and, concluding that Perm's testimony was false, filed a petition for reconsideration of the Board’s February 6,1989, decision. The petition was filed February 14, 1990. The Board determined that there were misrepresentations in the testimony and mistakes of fact made by the Board at the first hearing, entitling it to rehear the matter. Finding that the tract of land adjacent to the Albanese property was not part of the original nonconforming landfill operation, the Board reversed its February 1989 decision and determined that the adjacent tract was subject to the 500 feet setback. The Board’s decision was announced orally at the conclusion of its August 7, 1990 meeting; the written decision was issued September 18, 1990.

Grand Central timely appealed the Board’s decision to the common pleas court. The trial court found that the Board had no jurisdiction over the Albaneses’ appeal after it rendered its final order in February 1989 because a zoning hearing board has no authority to reconsider its decisions. Accordingly, the court sustained Grand Central’s appeal, reversed 1 the Board’s September 18 order and “affirmed,” i.e., reinstated the Board’s February 6, 1989 order. The Albaneses and the Township (Intervenor in the petition for reconsideration) now appeal.

The Township and the Albaneses argue that the Board did have jurisdiction to rehear the case. This is a question of first impression.

We begin our analysis by reference to In re Leopardi, 516 Pa. 115, 532 A.2d 311 (1987), which held that the power and authority of a zoning hearing board is limited to that conferred by the legislature either expressly or by necessary implication. The Court said there:

The controlling principles regarding the power of a zoning hearing board are well established. Zoning boards are not [277]*277judicial but administrative bodies created by the grace of the legislature. See Golla v. Hopewell Township Board of Supervisors, 69 Pa.Commonwealth 377, 452 A.2d 273 (1982). Their power and authority is limited to that conferred expressly by the legislature, or by necessary implication. The limits of that power must be strictly construed---- A doubtful power does not exist.

Id. at 119, 532 A.2d at 313 (citations omitted).

There is no provision in the MPC which confers on zoning hearing boards the power to reconsider their decisions. However, the question remains whether that power exists by necessary implication when there is, as in this case, an allegation of fraud and misrepresentation. We hold that it does not exist.

Section 1001-A of the MPC, 53 P.S. § 11001-A,2 provides that the sole remedy of the losing party is to appeal the decision of the zoning board to the court of common pleas. There is nothing in the MPC which provides for the grant of a rehearing at anytime.

In support of their argument that the zoning board does have the jurisdiction to grant a rehearing, the Albaneses and the Township cite Ventresca v. Exley, 358 Pa. 98, 56 A.2d 210 (1948). Relying on that decision, they argue that the MPC does not contain any prohibition against a rehearing. However, Ventresca was decided before the MPC was enacted in 1968 and reenacted and amended in 1988. Leopardi [In re] [516 Pa. 115, 532 A.2d 311 (1987) ] teaches us that the absence of a prohibition against the exercise of a particular power does not supply the power and authority that must be conferred “expressly or by implication.”

Albanese and the Township also rely upon Girolamo Appeal, 49 Pa.Commonwealth Ct. 159, 410 A.2d 940 (1980), in which this Court extended the time for appeal to the common pleas court from a zoning board decision.

[278]*278However, the Honorable William F. Moran ably and adequately addressed the ramifications of that case in his opinion below, which we quote:

An instructive case concerning the proper procedure to raise the issues presented in the instant case is In re: Appeal of Ralph Girolamo, 49 Pa.Cmwlth. 159, 410 A.2d 940 (1980). In Girolamo appellant was granted a permit as an expansion of a nonconforming use, in that case, a grocery store. Appellant proceeded immediately to make renovations and opened a restaurant on the premises. The application for the permit submitted to the zoning hearing board and the hearing notice sent to interested parties, stated that appellant intended to convert the premises into additional grocery store space. No reference was made to use of the premises as a restaurant. Almost three months after the permit was granted, the owner of an adjoining premises, a Mr. Fekety, filed a zoning appeal with the Court of Common Pleas. Appellant moved to quash the appeal because it was not filed within thirty days of the board’s action. After hearing argument, the trial court denied the motion to quash and allowed the appeal.

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Bluebook (online)
625 A.2d 115, 155 Pa. Commw. 273, 1993 Pa. Commw. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grand-central-sanitary-landfill-inc-v-zoning-hearing-board-pacommwct-1993.