79 A.3d 510
Pa.2013Background
- Upper Makefield, Wrightstown, and Newtown Townships amended their Joint Municipal Zoning Ordinance (Ordinance No. 1983) in Oct. 2006; Leo Holt, a landowner, appealed alleging procedural and substantive defects and became the sole "party appellant."
- Neighboring property owners participated in Holt’s Zoning Hearing Board proceedings as "parties to the hearing," called witnesses, but did not file their own appeal.
- Holt withdrew his appeal in June 2007; the Board terminated the proceedings and the Townships repealed Ordinance No. 1983 and reenacted it verbatim as Ordinance No. 2007 on June 18, 2007 purportedly to cure defects.
- Neighbors sought to continue Holt’s challenge; trial court ordered the Board to issue findings and the Board concluded neighbors lacked the right to continue because they had not been party appellants.
- Commonwealth Court reversed, allowing neighbors to proceed and held the repeal/reenactment did not moot the challenge, but remanded to consider whether a later Ordinance No. 2010 mooted the action; the Supreme Court granted review.
- Supreme Court reversed the Commonwealth Court, holding mere "parties to the hearing" cannot continue an appeal after the party appellant withdraws; it dismissed the attempted challenge as improperly continued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repeal and reenactment of an ordinance moots an existing challenge | Neighbors/Holt: reenactment in substantially same terms preserves the challenge under 1 Pa.C.S. § 1962 | Toll Brothers: repeal before vested rights or approvals means no rights vested and challenge is moot | Reenactment can preserve pending challenges when rights vested; but not decisive here because challenge failed on other grounds |
| Whether "parties to the hearing" can continue a challenge after party appellant withdraws | Neighbors/Upper Makefield: party status should allow continuation once recognized by board | Toll Brothers: only party appellants (who file written appeals and are aggrieved) can continue; parties to the hearing lack that right | Held for Toll Brothers: parties to the hearing lack the statutory right to continue an appeal after withdrawal of the party appellant |
| Whether Commonwealth Court rendered an advisory opinion by addressing merits while remanding mootness | Toll Brothers: opining on merits while mootness unresolved produced an impermissible advisory opinion | Neighbors: issues were justiciable at time, so addressing merits was permissible | Court: issue of who may continue was justiciable; discussion of merits was not an improper advisory opinion on that basis |
| Whether neighbors could have pursued relief by filing their own appeal instead | Toll Brothers: neighbors never filed required written appeal showing they were aggrieved | Neighbors: were parties to hearing and had participated; thus should proceed | Held for Toll Brothers: neighbors could have filed their own appeal but did not; their status as parties to the hearing did not substitute for being party appellants |
Key Cases Cited
- Kraus v. City of Philadelphia, 265 Pa. 425 (1919) (repeal and reenactment in substantially same terms preserves pending proceedings)
- In re Earned Income Tax Ordinance of Wilkes-Barre, 208 Pa.Super. 424 (1966) (same principle on reenactment preserving proceedings)
- Frank v. Mobil Oil Corp., 6 Pa.Cmwlth. 462 (1972) (participation or witness status does not automatically create party-appellant rights)
- Sharp v. Zoning Hearing Bd. of Twp. of Radnor, 157 Pa.Cmwlth. 50 (1993) (precondition to substantive challenge is existence of a specific use; tied to filing/approval of development plans)
- Belber v. Lower Merion Township, 163 Pa.Cmwlth. 127 (1994) (where sketch plan submission required by local ordinance, the governing ordinance at time of submission may control)
- Pheasant Run Civic Org. v. Bd. of Comm’rs of Penn Twp., 60 Pa.Cmwlth. 216 (1981) (objector may not bring substantive validity challenge absent application for specific use or issued permit)
- Pa. Pub. Util. Comm’n v. County of Allegheny, 415 Pa. 313 (1964) (court may not issue advisory opinions in absence of justiciable controversy)
- Dep’t of Envtl. Res. v. Jubelirer, 531 Pa. 472 (1992) (moot issues cannot justify judicial opinions)