Pendle Hill v. The ZHB of Nether Providence Twp. Appeal of: W. Brophy and E. Brophy
134 A.3d 1187
| Pa. Commw. Ct. | 2016Background
- Pendle Hill (Applicant), a nonprofit operating a conference center, sought to use an adjoining house for institutional lodging and applied to the Nether Providence Zoning Hearing Board (ZHB) for variance / special exception / de facto exclusionary determination in early 2014.
- Objectors (William and Erin Brophy) participated at ZHB hearings with counsel and were present when the ZHB announced an oral vote denying Applicant’s requests on April 21, 2014.
- The ZHB issued a written decision (findings and conclusions) on June 2, 2014; Applicant filed a land use appeal to the trial court within the appeal period, and on October 9, 2014 the trial court reversed the ZHB and ordered a Certificate of Occupancy under RLUIPA reasoning noted in the order.
- Five and a half months later Objectors (with new counsel) filed a petition to open the judgment and to intervene nunc pro tunc in the land use appeal, asserting they never received written notice of the ZHB’s decision or notice of Applicant’s appeal and claiming due process prejudice.
- The trial court denied the petition as untimely under the 30-day modification rule and for lack of standing; Objectors appealed to the Commonwealth Court.
- The Commonwealth Court vacated and remanded for the trial court to determine whether the ZHB’s failure to mail required written notice to objectors constituted "extraordinary cause" justifying nunc pro tunc intervention; burden on Objectors to prove causation; hearing required on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to receive ZHB written decision and notice of appeal constitutes extraordinary cause to open a final order and permit nunc pro tunc intervention | Objectors: ZHB failed to mail required written decision and place-to-examine statement under MPC §908(10); that procedural failure deprived them of knowledge of appeal and is extraordinary cause | Applicant/Trial Ct.: Objectors had actual notice of oral decision, had opportunity to check court docket, and intervention rules require timely filing; no extraordinary circumstances exist | Remanded: Court held ZHB’s failure to provide statutorily required written notice to objectors may constitute extraordinary cause; trial court must determine causation and hold a hearing |
| Whether notice of an oral vote satisfies MPC §908(10) mailing requirement to objectors | Objectors: oral vote is insufficient; statute requires written decision and notice of where full decision may be examined | Applicant/Trial Ct.: presence at hearing and oral announcement gave actual notice; mailing requirement is directory for applicants and oral notice suffices | Held: Oral vote insufficient; §908(10) requires mailing/brief notice of the written decision and place to examine full decision to objectors; precedent (Mihal, Clemens) supports this distinction |
| Whether applicant had duty to serve objectors with copy of land use appeal | Objectors: because they lacked notice of written decision, they also did not learn of the appeal; equitable relief should follow | Applicant: MPC and Boerner do not require an applicant to serve objectors; prothonotary gives notice; objectors must intervene timely | Held: Boerner-type duty not required; but lack of service on objectors is relevant to extraordinary-cause inquiry — remand for factual causation inquiry |
| Whether trial court could reverse ZHB on RLUIPA grounds not raised below and whether that justifies reopening judgment | Objectors: trial court relied on RLUIPA not raised previously; that procedural/merits issue is extraordinary | Applicant: merits/relief issues not proper basis for extraordinary-cause reopening; intervention doctrine is procedural | Held: Court declined to resolve merits or RLUIPA argument on appeal; emphasized extraordinary-cause inquiry may not be used to litigate merits — merits-related claims cannot justify nunc pro tunc intervention; remand focuses on notice/causation only |
Key Cases Cited
- Mihal v. Zoning Hearing Bd. of City of Hazleton, 545 A.2d 1002 (Pa. Cmwlth. 1988) (failure to give objectors statutory notice of board decision can render later appeal timely)
- Clemens v. Zoning Hearing Bd. of Upper Gwynedd Twp., 281 A.2d 93 (Pa. Cmwlth. 1971) (en banc) (zoning board’s failure to notify objectors of written decision supports tolling appeal period)
- Narberth Borough v. Lower Merion Township, 915 A.2d 626 (Pa. 2007) (appeal period runs from mailing of written decision; concerns about asymmetry if non-applicants lack comparable notice)
- M.J.M. Financial Services, Inc. v. Burgess, 533 A.2d 1092 (Pa. Cmwlth. 1987) (untimely intervention after decree may be allowed where the purported intervenor was unaware of litigation and extraordinary circumstances exist)
- Manufacturers & Traders Trust Co. v. Greenville Gastroenterology, S.C., 108 A.3d 913 (Pa. Super. 2015) (defines ‘extraordinary cause’ as oversight in judicial process depriving party of knowledge of entry of final judgment)
- Jackson v. Hendrick, 746 A.2d 574 (Pa. 2000) (courts may rescind orders beyond normal time limits where inequity results from court errors)