Hammond v. Zoning Hearing Board

564 A.2d 1324, 129 Pa. Commw. 144, 1989 Pa. Commw. LEXIS 626
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 19, 1989
DocketNo. 3 C.D. 1989
StatusPublished
Cited by5 cases

This text of 564 A.2d 1324 (Hammond 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
Hammond v. Zoning Hearing Board, 564 A.2d 1324, 129 Pa. Commw. 144, 1989 Pa. Commw. LEXIS 626 (Pa. Ct. App. 1989).

Opinion

CRAIG, Judge.

Richard C. Hammond appeals from an order of Judge Peter J. O’Brien of the Court of Common Pleas of Monroe County that affirmed the order of the Zoning Hearing Board of the Borough of Stroudsburg denying Hammond’s application for a special exception to change from one nonconforming use to another.

The issues as framed by Hammond are (1) procedurally, whether the application should be deemed approved under the provisions of section 908(9) of the Pennsylvania Municipalities Planning Code (MPC),1 where the board issued a written decision containing findings of fact and conclusions of law outside a period of forty-five days from the public hearing on the application, but the board sent Hammond written notice of its decision well within that period, and (2) substantively, whether substantial evidence supported the board’s findings that Hammond had failed to show (a) that the change in use would not increase vehicular or pedestri[147]*147an traffic and (b) that the property could not reasonably be changed to a conforming use.

Hammond owns property in Stroudsburg that was formerly known as the “Old Glass Factory” and that he had used for many years as a warehouse in connection with his plumbing and heating supply business located several hundred feet away. The warehouse was a valid nonconforming use in an R-2 district where single- or two-family houses are the permitted uses. On July 3, 1987, a fire caused by arson destroyed a significant portion of the building, and Hammond later had the rest of it torn down, leaving only the stone foundation of the structure, with a paved parking area behind it. Hammond filed an application with the borough for a special exception to change the nonconforming warehouse to six nonconforming townhouse units and for an accompanying variance from side yard setback requirements.

The board held a public hearing on the application on November 18, 1987, at which Hammond presented evidence in support of his application, and various nearby residents testified in opposition. On December 16, at its next regular meeting, the board voted to deny the application. Hammond’s counsel was present at that meeting. The board’s counsel sent Hammond a letter dated December 18, 1987, informing him of the board’s decision and stating that a formal opinion would be issued shortly. The board’s formal opinion and order, containing findings of fact and conclusions of law, Were sent to Hammond under cover of a letter dated January 6, 1988, forty-nine days after the public hearing.

Hammond appealed the board’s decision to the court of common pleas, which affirmed. The court concluded that Hammond’s deemed decision argument was without merit and that substantial evidence supported the board’s conclusion that Hammond reasonably, and without the need for a special exception or variance, could convert the property to a permitted residential use. This appeal followed.

[148]*148Where the court of common pleas has taken no additional evidence in a zoning appeal, this court’s scope of review is to determine whether the zoning hearing board abused its discretion or committed error of law. Friedlander v. Zoning Hearing Board of Sayre Borough, 119 Pa.Commonwealth Ct. 164, 546 A.2d 755 (1988).

Section 908(9) Deemed Decision
Section 908(9) of the MPC provides in part:
The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the board or hearing officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions of law thereon together with the reasons therefore. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found____ Where the board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within 60 days from the date of the applicant’s request for a hearing, 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

This court has addressed the precise deemed decision issue raised by Hammond on several occasions. In Heisterkamp v. Zoning Hearing Board of the City of Lancaster, 34 Pa.Commonwealth Ct. 539, 383 A.2d 1311 (1978), a zoning hearing board mailed written notice of its denial of a variance request to an applicant two days after the board made the decision, well within the forty-five-day period. The board sent written findings of fact and conclusions of [149]*149law to the applicant some three and one-half months after that. This court quoted language from the opinion of the Supreme Court in Humble Oil and Refining Co. v. East Lansdowne Borough, 424 Pa. 309, 227 A.2d 664 (1967), to the effect that a decision must carry with it an opinion, memorandum or explanation of some kind. However, we then noted that the Supreme Court had since rejected the Humble Oil language as dicta, in the case of Garchinsky v. Clifton Heights Borough, 437 Pa. 312, 263 A.2d 467 (1970). We stated:

Accordingly, we have held that the 45-day requirement is satisfied when the decision reached by a zoning board is communicated to the parties even though it is not then accompanied by findings of fact, by an opinion or by any explanation of the result. Morgan v. Zoning Hearing Board, 3 Pa.Commonwealth Ct. 362, 283 A.2d 95 (1971)____ In Morgan this Court expressed its opinion that the MPC distinguishes between the Board’s ‘decision’ and the supporting ‘findings of fact, conclusions and reasons therefor’ and required a reversal only for failure to render a ‘decision’ within the specified period.

Heisterkamp, 34 Pa.Commonwealth Ct. at 542-43, 383 A.2d at 1313. Accord A.Z.J.Z., Inc. v. Township of Springfield, 36 Pa.Commonwealth Ct. 161, 387 A.2d 675 (1978).

Hammond acknowledges this state of our court’s precedents, but argues that the decision of the Supreme Court in Relosky v. Sacco, 514 Pa. 339, 523 A.2d 1112 (1987), has changed the law on this point. In Relosky, a borough enacted a zoning ordinance but failed to establish a zoning hearing board. To adjudicate an application to subdivide property, the borough council itself held a hearing, at which it refused to allow the applicant to testify. The council orally informed the applicant of its denial of his application, but it never issued a written decision.

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Bluebook (online)
564 A.2d 1324, 129 Pa. Commw. 144, 1989 Pa. Commw. LEXIS 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammond-v-zoning-hearing-board-pacommwct-1989.