35 Pa. Commw. 229 | Pa. Commw. Ct. | 1978
Opinion by
The appellants, Joseph Pae and Irene Pae, his wife, have appealed an order of the Court of Common Pleas of Bucks County affirming a decision of the Hilltown Township Zoning Hearing Board denying the appellants’ application for a variance. The appellants contend that the Township Zoning Hearing Board’s procedures were so defective that we should hold that the variance must be deemed to have been granted and, alternatively, that the variance on the merits should have been granted. None of their contentions in our view have merit and we will affirm.
The appellants own a three acre tract of land located in the Township’s R-50 Residential and Agricultural District. Commercial uses are not permitted in the R-50 District.
The appellants bought their three acre parcel from one Herbert Shaekleton. It was a part of a 17 acre tract which Shaekleton had bought from one Paul Schmidt. In 1969 Schmidt applied for and obtained a variance from the Township Zoning Hearing Board permitting him to construct fishing ponds on the 17 acre tract and to use the ponds for public on-site fishing for a fee. In addition to the ponds Schmidt erected a luncheonette. In 1973, Shaekleton applied for
On May 28, 1975, appellants filed an application for a variance. The Zoning Hearing Board held a hearing on September 15, 1975 and denied the application. On appeal, the Court of Common Pleas admitted into the record a stipulation of counsel that the Zoning Hearing Board’s final written decision was dated October 29, 1975 and that a copy thereof was mailed to appellants on November 6, 1975. The court also admitted depositions of the three members of the Hilltown Township Zoning Hearing Board. The purpose of the depositions was to demonstrate the manner in which the Board had reached and communicated its decision in test of whether the procedure violated the so-called “Sunshine Law,” Act of July 19,
The appellants first say that no valid decision was rendered by the Zoning Hearing Board within the 45 day limitation fixed by Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31,1968, P.L. 805, as amended, 53 P.S. §10908(9), and that their application for a variance should therefore be deemed to be approved.
(a) The board or the hearing officer, as the case may be, shall render a written deci*233 sion or, when no decision is called for, make written findings on the application within forty-five days after the last hearing before the board or hearing officer. . . . "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 to an extension of time. (Emphasis added.)
The appellants do not contest that the Zoning Hearing Board’s decision dated October 29, 1975 was not made within 45 days after its hearing on September 15, 1975. They argue, rather, that the requirements of Section 2 of the “Sunshine Law” were not met. That provision is as follows:
The meetings or hearings of every agency at which formal action is scheduled or taken are public meetings and shall be open to the public at all times. No formal action shall be valid unless such formal action is taken during a public meeting. (Emphasis added.)
It is the appellants’ thesis that the Zoning Hearing Board’s written decision not having been made at a public meeting was invalid because not made in compliance with the “Sunshine Law,” and that the oral decision, which was so rendered, was not the “formal action” required by the same “Sunshine Law” because Section 908(9) of the MPC requires a written decision. They cite Patwardhan v. Bedminster Township Zoning Hearing Board, 29 Bucks Co. L. Rep. 36 (1976), and Allwein v. Zoning Hearing Board, 68 Pa. D. & C. 2d 787 (1975) for the proposition that this supposed violation of law had the effect of converting the Board’s action denying the variance by writing to nonaction for purposes of Section 908(9) of the MPC.
‘Formal action’ means the taking of any vote on any resolution, rule, order, motion, regulation or ordinance or the setting of any official policy. Meetings, pre-trial conferences, hearings, and formal action by the judiciary or judicial branch shall not be subject to the provisions of this act. (Emphasis added.)
The taking of a vote is not something which is ordinarily accomplished by executing a writing. The suggestion that a provision of an Act other than the Sunshine Law requiring a decision to be evidenced by a writing should be held to control the operation of the Sunshine Law is unacceptable.
In passing, we note that even had the Zoning Hearing Board violated the Sunshine Law while complying with the 45 day written decision requirement of Section 908(9) of the MPC, the Sunshine Law violation would not have transformed the Board’s written decision into nonaction for purposes of Section. 908(9) of the MPC:
Judge Rogers considered this problem in Enck v. Anderson, 25 Pa. Commonwealth Ct. 318, 360 A.2d 802 (1976), and observed that ‘[t]he Sunshine Law declares that “no formal action shall be valid unless such formal action is taken during a public meeting”; it does not*235 declare that such action so taken is no action at all.’ 25 Pa. Commonwealth Ct. at 321, 322, 360 A.2d at 804. The ‘deemed approved’ rule as set forth [in Section 908(9) of the MPC] is designed we believe to assure applicants of timely decisions on their zoning applications, and zoning boards under this rule can no longer effectively frustrate or prohibit lawful land uses by refusing to act on zoning applications. But, where some action has been taken within 45 days but rendered invalid only because of a board’s failure to adhere to the Sunshine Law, the purpose of the 45-day rule is not furthered by granting the application without any consideration as to the validity of the use and thus penalizing the Township and jeopardizing its land use scheme.
Appeal of Emmanuel Baptist Church, supra, 26 Pa. Commonwealth Ct. at 437, 364 A.2d at 541-42.
To the degree that the Court of Common Pleas’ decisions of Patwardhan, supra, and Allwein, supra, are in conflict with our holdings in Appeal of Emmanuel Baptist Church, supra, and Enck, supra, they are of course disapproved.
Next, the appellants say that the Zoning Hearing Board committed an abuse of discretion and an error of law in refusing to grant their application for variance. Appellants rely on Sheedy v. Zoning Board of Adjustment, 409 Pa. 655, 187 A.2d 907 (1963), for the proposition that the inaction of Hilltown Township between September and December of 1973, when the appellants built their garage and began to use it, and May 2, 1975, the date of the Township’s cease and desist order, presents a proper occasion for the application of the doctrine of variance by estoppel. The holding of Sheedy, however, has been confined to its facts by Hasage v. Philadelphia Zoning Board of Ad
Sheedy was a singular situation and presented at least three factors ... : (1) the multiple-family dwelling, or nonconforming use, had existed for a score of years, in fact, almost from the date of the passage of the zoning ordinance; (2) The city had permitted the illegal use to continue without challenge for twenty-three years despite knowledge of its existence, and pursued a course of conduct that indicated multiple tenancy was not objectionable; (3) It was clearly established that the cost of conversion to a single dwelling would be enormous and prohibitive. It was the combination of all these elements that induced this Court’s decision in that case.
415 Pa. at 36, 202 A.2d at 64.
The two factors first mentioned are clearly absent in this case.
The appellants also cite Heidorn Appeal, 412 Pa. 570, 195 A.2d 349 (1963), for the. proposition that laches may be imputed to a municipality which "fails to enforce its ordinances for long periods of time. . In Heidorn, supra, a township failed for ten years to object to the encroachment of an awning into a required front yard open space. Since the inaction of Hilltown Township in the instant case lasted less than two years, and because a use violation is more serious than a dimensional deviation, Heidorn, supra, is not persuasive. See also Dewald v. Board of Adjustment, City of Pittsburgh, supra.
The appellants further complain that a number of persons and circumstances caused them mistakenly to believe that their three acres could be used as an auto
Order affirmed.
And Now, this 2nd day of May, 1978, the order of the Court of Common Pleas of Bucks County herein appealed from is affirmed.
The appellants also argued below that the Board mailed its written decision to them some eight days after it was rendered, in violation of Section 908(10) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(10). Section 908(10) provides, inter alia, that:
A copy of the final decision . . . shall be delivered to the applicant personally or mailed to him not later than the day following its date. . . .
The court below properly noted that the late mailing was not fatal to the Board’s decision. Absent demonstrated injury to appellants, Section 908(10) of the MPC is directory only. Limekiln Golf Course, Inc. v. Zoning Board of Adjustment of Horsham Township, 1 Pa. Commonwealth Ct. 499, 275 A.2d 896 (1971). See also Heisterkamp v. Zoning Hearing Board of the City of Lancaster, 34 Pa. Commonwealth Ct. 539, 383 A.2d 1311 (1978).