IN THE COMMONWEALTH COURT OF PENNSYLVANIA
E&R Partners, LP :
:
v. :
:
Robinson Township Zoning Hearing :
Board :
:
v. :
:
Township of Robinson :
:
Appeal of: Robinson Township : No. 831 C.D. 2022
Zoning Hearing Board : Submitted: December 4, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
JUDGE COVEY FILED: February 20, 2024
Robinson Township (Township) Zoning Hearing Board (ZHB) appeals
from the Allegheny County Common Pleas Court’s (trial court) June 30, 2022 order
ruling that the ZHB had jurisdiction to hear E&R Partners, LP’s (E&R) zoning
appeal and remanding the matter to the ZHB for a hearing on the merits. The ZHB
presents two issues for this Court’s review: (1) whether the trial court erred by
concluding that the ZHB had jurisdiction; and (2) whether permitting E&R to pursue
its appeal before the ZHB would vitiate the Pennsylvania Municipalities Planning
Code’s1 (MPC) legislative purpose for the provisions mandating timely resolution
of zoning disputes. After review, this Court affirms.
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
E&R is the record owner of property located at 5852 Steubenville Pike
(Property) in the Township, from which it conducts a real estate business. James
Esposito (Esposito) is E&R’s managing partner. On October 31, 2017, the
Township’s Solicitor sent Esposito a letter (October 2017 Letter), wherein he
demanded that Esposito and E&R cease and desist operating a third-party business,
The Counseling Initiative of Pittsburgh (TCI), from the Property’s basement without
first obtaining an occupancy permit from the Township. Specifically, the October
2017 Letter stated, in relevant part:
[The Township has] received information that . . . TCI []
is operating a counseling initiative out of the basement of
the [] [P]roperty. The Township officials have informed
us that there is not an Occupancy Permit for the [P]roperty
and for the operation of a business out of that location.
This is a violation of [Chapter 300 of the Township Code
of Ordinances, “Zoning” (Zoning Ordinance), Twp. Of
Robinson, Allegheny County, Pa. Zoning Ordinance
(2010)]. . . .
Accordingly, please accept this [October 2017 L]etter
as the Township’s demand that you cease and desist the
operation of TCI [] or any other residential or commercial
enterprise without obtaining an Occupancy Permit from
the Township . . . . If you do not cease this operation
within forty-eight (48) hours of the receipt of this
notification, the Township will have no other recourse
than to enforce the laws of the Township [] which will
include, but not be limited to, the shutting down of this
operation.
Reproduced Record (R.R.) at 28a (emphasis added).
Neither Esposito nor E&R complied with the October 2017 Letter. By
November 7, 2017 correspondence (November 2017 Letter), the Township informed
Esposito’s counsel that it was immediately issuing criminal citations against him,
E&R, and TCI, that TCI needed to apply for a new zoning permit, and that Esposito
and E&R were required to obtain site plan approval for TCI from the Township’s
2
Planning Commission before the Township would issue a new occupancy permit.
See R.R. at 35a. On November 10, 2017, the Township’s Code Enforcement Officer
filed a non-traffic criminal citation against Esposito for violation of Township
“Municipal Code Violations, Chapter 300 Zoning Art[icle] III[, Township of
Robinson, Allegheny County, Pa., Municipal Code (2010)].” Esposito and E&R
subsequently requested certain determinations from the Township’s Zoning Officer
(Zoning Officer) to formulate an appeal to the ZHB. The Zoning Officer responded
that it would not issue the requested determinations.
On February 15, 2018, Magisterial District Judge (MDJ) Carla M.
Swearingen-Batch (MDJ Swearingen-Batch) found Esposito guilty of a summary
offense (Summary Conviction) and imposed a $500.00 fine.
By March 9, 2018 correspondence (March 2018 Letter), the
Township’s Solicitor notified E&R:
On February 15, 2018[,] you were found guilty . . . of a
Summary Offense - Required Permit for Zoning and
Building. You were found guilty on the basis that you did
not have an Occupancy Permit for the [] [P]roperty. In
addition, the Township received letters dated February 15,
2018[,] from Plans Examiners, Inc. indicating that you
have not called for a re-inspection of the [P]roperty under
the Fire Code of the Township[2] [] since March 14, 2011.
In addition, Plans Examiners, Inc. has indicated that your
Building Permit issued on March 30, 2012[,] expired on
March 30, 2018[,] and your Certificate of Occupancy for
the rear of the building has not been issued.
Please accept this [March 2018 L]etter as your official
notice that you must terminate your illegal operation of the
businesses currently operating in your building at the
[Property]. If you do not cease your illegal operations and
vacate the above building by March 15, 2018[,] you may
subject yourself to the daily fine of Five Hundred
($500.00) Dollars for each day that the violations continue
2
Township Ordinance 9 of 2005.
3
plus all court costs and reasonable attorney fees incurred
by the Township. You may also be subject to an action to
obtain an injunction restraining you from continuing your
use of your building. . . .
If you believe you are not in violation of the provisions
of the Zoning Ordinance . . . you have the right to file
an appeal to the [ZHB] and to the [trial court] within
thirty (30) days of February 15, 2018.
R.R. at 15a (emphasis added).
On March 15, 2018, Esposito appealed from the Summary Conviction
to the trial court. Esposito moved for dismissal of the citation. On September 18,
2018, the trial court dismissed Esposito’s appeal as inappropriately filed. Thereafter,
Esposito appealed from the trial court’s dismissal to this Court.
In the interim, on September 10, 2018, E&R filed a notice of appeal
with the ZHB from “the requirement and refusal made by the Zoning Officer in the
administration of [the Zoning Code].” R.R. at 9a. By September 20, 2018 letter
(September 2018 Letter), the Zoning Officer explained:
As you are aware, on October 31, 2017, you were issued a
Notice of Enforcement of the [Zoning] Ordinance[] . . .
pertaining to an illegal operation that was occurring at the
[Property]. It is our understanding that you permitted TCI
[] to operate a counseling initiative out of the basement of
the [] [P]roperty. TCI [] was operating the counseling
initiative without an Occupancy Permit for the [P]roperty
and for the operation of a business out of that location. In
addition, you failed to cease and desist the operation of
TCI [] or any other residential/commercial enterprise
without obtaining an Occupancy Permit from the
Township []. As a result, the Township [] was forced to
issue citations with [MDJ Swearingen-Batch] for
violations pursuant to Article III - Administration and
Enforcement of the [Zoning Ordinance], Sections 300-16,
300-17 and 300-18, and as amended by the Township . . . .
In addition, the citations were issued under Part 21-A -
Off-Street Parking and Loading of the [Zoning
Ordinance]. It is the Township’s position [] that you are
currently in violation of Part 21-A for failure to submit and
4
have approved a Site Plan for the above [P]roperty
address. You were previously forwarded the applicable
sections of the [Zoning Ordinance,] as well as the relevant
forms for Application for Certificates of Occupancy,
Building Permits and Site Plan Applications.
On February 15, 2018[,] you were found to be in violation
of the [Zoning Ordinance] by [MDJ Swearingen-Batch].
On March 9, 2018[,] an additional Enforcement Notice
was sent to you and Capital Realty at the above address.
You were advised at that time that if you continue the
illegal operation of the businesses currently operating in
the building[,] you could be subject to civil fines and
penalties. At that time[,] you were advised that if you
believed you were not in violation of the provisions of the
[Zoning Ordinance,] . . . you have the right to file an
[a]ppeal to the [ZHB] and to the [trial court] within thirty
(30) days of February 15, 2018.
On or about March 15, 2018[,] you filed an [a]ppeal to the
[trial court] from your [S]ummary [C]onviction.
However, you failed to file an [a]ppeal to the [ZHB].
You did file an [a]ppeal to the [ZHB] on September 10,
2018, said [a]ppeal being beyond the thirty (30)[-]day time
limit for [a]ppeal to the [ZHB].
On September 18, 2018, your [a]ppeal was dismissed by
the Honorable Lester Nauhas of the [trial court]. As a
result of the dismissal of the [a]ppeal by the [trial court],
you are subject to the Five Hundred ($500.00) Dollar fine
instituted by [MDJ] Swearingen-Batch and you may be
subject to an additional Five Hundred ($500.00) Dollar
daily fine for your failure to cease and desist the operation
of [TCI] in your building.
As a result of the above, you must cease and desist the
operation of TCI [] and any other residential/commercial
enterprise at the above location without obtaining an
Occupancy Permit from the Township . . . . If you do not
cease this operation within ten (10) days of the receipt of
this notification the Township will have no other recourse
but to enforce the laws of the Township [] which will
include, but not be limited to, the request for an injunction
to prohibit the operation of [TCI,] as well as a daily fine of
5
Five Hundred ($500.00) Dollars per day as a result of the
dismissal of your [a]ppeal to the [trial court].
Original Record (O.R.) at 156-157 (emphasis added). On September 28, 2018, E&R
filed an amended notice of appeal with the ZHB from the Zoning Officer’s
September 2018 Letter.
Following a public hearing, on November 28, 2018, the ZHB concluded
that it lacked jurisdiction over the matter because neither Esposito nor E&R appealed
to the ZHB within 30 days of the October 2017 Letter or MDJ Swearingen-Batch’s
February 15, 2018 decision. E&R timely appealed from the ZHB’s November 28,
2018 decision to the trial court.
On May 31, 2019, in Township of Robinson v. Esposito, 210 A.3d 1146
(Pa. Cmwlth. 2019), this Court reversed the trial court’s decision that dismissed
Esposito’s appeal from the Summary Conviction, concluding that the October 2017
Letter and November 2017 Letter did not satisfy the enforcement notice
requirements of Section 616.1 of the MPC.3
3
Added by Section 60 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10616.1.
Section 616.1 of the MPC states, in pertinent part:
(a) If it appears to the municipality that a violation of any zoning
ordinance enacted under [the MPC] or prior enabling laws has
occurred, the municipality shall initiate enforcement proceedings
by sending an enforcement notice as provided in this section.
(b) The enforcement notice shall be sent to the owner of record of
the parcel on which the violation has occurred, to any person who
has filed a written request to receive enforcement notices regarding
that parcel, and to any other person requested in writing by the
owner of record.
(c) An enforcement notice shall state at least the following:
(1) The name of the owner of record and any other person
against whom the municipality intends to take action.
(2) The location of the property in violation.
6
On June 30, 2022, the trial court concluded that the ZHB had
jurisdiction and remanded the matter to the ZHB to conduct an appropriate hearing.
The ZHB filed a timely appeal from the trial court’s order in this Court.4 On October
10, 2022, E&R filed a motion to quash the ZHB’s appeal, alleging that the trial
court’s June 30, 2022 order was not a final, appealable order and that the ZHB, as a
quasi-judicial body, did not have standing to appeal therefrom. On January 31, 2023,
this Court denied E&R’s motion to quash. Thereafter, the parties filed their briefs
in this Court.5
(3) The specific violation with a description of the
requirements which have not been met, citing in each
instance the applicable provisions of the ordinance.
(4) The date before which the steps for compliance must be
commenced and the date before which the steps must be
completed.
(5) That the recipient of the notice has the right to appeal
to the zoning hearing board within a prescribed period of
time in accordance with procedures set forth in the
ordinance.
(6) That failure to comply with the notice within the time
specified, unless extended by appeal to the zoning hearing
board, constitutes a violation, with possible sanctions
clearly described.
(d) In any appeal of an enforcement notice to the zoning hearing
board, the municipality shall have the responsibility of presenting
its evidence first.
53 P.S. § 10616.1 (bold and underline emphasis added).
4
Whether the ZHB had jurisdiction below is a question of law and, thus, this Court’s review
is plenary. See Seitel Data, Ltd. v. Ctr. Twp., 92 A.3d 851 (Pa. Cmwlth. 2014); Dechert LLP v.
Pa. Dep’t of Cmty. & Econ. Dev., 234 A.3d 911 (Pa. Cmwlth. 2020).
5
The Township also filed a brief urging this Court to reverse the trial court’s order. Like
the ZHB, the Township argues that the trial court erred by ruling that the ZHB had jurisdiction.
The Township further argues:
The [t]rial [c]ourt in this matter substituted its own judgment over
that of the judgment of the [ZHB,] despite not conducting any
further hearings or gathering any additional evidence from the
7
The ZHB first argues that it lacked jurisdiction over E&R’s appeal
because the October 2017 Letter, the November 2017 Letter, and the March 2018
Letter (collectively, the Letters) were determinations from which E&R failed to
timely appeal, despite that the Zoning Officer had not issued an enforcement notice
for the subject violations.6
Section 909.1(a)(3) of the MPC specifies that the ZHB has exclusive
jurisdiction to hear and render final adjudications in appeals from zoning officer
“determination[s] . . . , including . . . the issuance of any cease and desist order . . . .”
53 P.S. § 10909.1(a)(3), added by Section 87 of the Act of December 21, 1988, P.L.
1329. Section 107(b) of the MPC defines determination as:
[F]inal action by an officer, body or agency charged with
the administration of any land use ordinance or
applications thereunder, except the following:
(1) the governing body;
parties. This substitution of judgment comes after the [ZHB]
conducted a full hearing on this matter, considered and reviewed
proposed findings of fact and conclusions of law from the parties,
and issued [] well-reasoned and detailed [f]indings of [f]act,
[c]onclusions of [l]aw, [r]easoning[,] and [d]ecision.
The [t]rial [c]ourt’s opinion rests on the finding of this Court in
[Esposito], that the Township’s letters did not contain the proper
information required by [the MPC] to constitute a Notice of
Enforcement. However, the question before this [t]rial [c]ourt was
not concerning the enforcement of a notice of violation, but rather
whether the [ZHB] had jurisdiction to hear an appeal of a
determination of the Zoning Officer when the appeal was not
submitted within [30] days as required by the [MPC]. The [t]rial
[c]ourt failed to evaluate the letters as determinations when [it]
evaluated the letters as notices of enforcements issued by the Zoning
Officer appealable only to the [ZHB] under the [MPC].
Township Br. at 11-12. The Township’s issues are subsumed herein. Although the ZHB also
raised the issue of the trial court’s alleged improper substitution of judgment in its Statement of
the Questions Involved, it did not further argue that issue in its brief. See ZHB Br. at 5.
6
The ZHB also argues that E&R did not appeal to the ZHB within 30 days of the filing of
the MDJ action that resulted in the Summary Conviction.
8
(2) the zoning hearing board; or
(3) the planning agency, only if and to the extent the
planning agency is charged with final decision on
preliminary or final plans under the subdivision and land
development ordinance or planned residential
development provisions. Determinations shall be
appealable only to the boards designated as having
jurisdiction for such appeal.
53 P.S. § 10107(b) (emphasis added).
“Pursuant to Section 914.1(b) of the [MPC], ‘[a]ll appeals from
determinations adverse to the landowners shall be filed by the landowner within 30
days after notice of the determination is issued.’ 53 P.S. § 10914.1(b)[, added by
Section 95 of the Act of December 21, 1988, P.L. 1329] (emphasis added).” Martin
v. Zoning Hearing Bd. of W. Vincent Twp., 230 A.3d 540, 544 (Pa. Cmwlth. 2020)
(footnotes omitted). “Statutory appeal periods are mandatory and may not be
extended as a matter of grace or mere indulgence. Appeals filed beyond the appeal
period are untimely and deprive the reviewing tribunal of subject matter jurisdiction
over the appeals.” Id. at 545 (quoting Kocher v. Zoning Hearing Bd. of Wilkes-Barre
Twp. (Pa. Cmwlth. No. 81 C.D. 2015, filed Feb. 9, 2016), slip op. at 7 (citations
omitted)).7
The law is well established:
[I]n order to commence zoning enforcement
proceedings, a municipality must send an enforcement
notice which satisfies the specific requirements set
forth in Section 616.1 of the [MPC]. A municipality’s
failure to comply with Section 616.1 precludes it from
seeking penalties under Section 617.2 of the MPC[, 53
P.S. § 10617.2, added by Section 62 of the Act of
December 21, 1988, P.L. 1329].
7
Unreported decisions of this Court, while not binding, may be cited for their persuasive
value. Section 414(a) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa.
Code § 69.414(a). The unreported cases referenced herein are cited for their persuasive value.
9
Once a landowner has been given notice of a zoning
violation pursuant to Section 616.1 [of the MPC], that
landowner can contest the asserted violations only by
way of appeal to the municipality’s zoning hearing
board and cannot merely defend the charge when the
municipality seeks ordinance violation fines before a
district justice.
City of Erie v. Freitus, 681 A.2d 840, 842 (Pa. Cmwlth. 1996) (emphasis added;
citation and footnotes omitted).
[A]s provided in Section 616.1 of the MPC, an
enforcement proceeding is initiated as soon as an
enforcement notice is sent to the property owner. An
appeal to the zoning hearing board regarding such a
notice is part and parcel of the enforcement proceeding
because a property owner may not be found liable unless
there is a conclusive determination of a violation, either
through the appeal process or by a failure to appeal the
notice.
Borough of Bradford Woods v. Platts, 799 A.2d 984, 991 (Pa. Cmwlth. 2002) (bold
and underline emphasis added); see also Borough of W. Conshohocken v. Soppick,
164 A.3d 555, 560 (Pa. Cmwlth. 2017) (“The notice of violation informs the
landowner of the specific violation, the steps to be taken to come into compliance,
and the time within which to do so. Upon receipt of the notice, the landowner may
appeal the violation to the zoning hearing board.”); Warwick Twp. v. Winters (Pa.
Cmwlth. No. 2071 C.D. 2016, filed July 21, 2017). Thus, “Section 616.1(c)(6) of
the MPC dictates a conclusive determination of violation when a landowner, after
receiving an enforcement notice, continues an allegedly unlawful use without
appealing to the [z]oning [h]earing [b]oard[.]” Borough of Latrobe v. Pohland (Est.
of Pohland), 702 A.2d 1089, 1096 (Pa. Cmwlth. 1997) (emphasis added).
The Esposito Court held that the October 2017 Letter and November
2017 Letter did not comply with the MPC’s enforcement notice requirements.
Similarly, the March 2018 Letter did not comply with MPC’s enforcement notice
10
requirements because it did not identify the Zoning Ordinance provisions E&R
allegedly violated. See Section 616.1(c)(3) of the MPC, 53 P.S. § 10616.1(c)(3); see
also Twp. of Maidencreek v. Stutzman, 642 A.2d 600 (Pa. Cmwlth. 1994). The ZHB
asserts that, despite that the Letters did not meet Section 616.1 of the MPC’s
enforcement notice requirements, they were determinations - specifically, cease and
desist orders - under Section 909.1(a)(3) of the MPC, and any appeal therefrom had
to be filed within 30 days. However, the Esposito Court explained: “While we
acknowledge and agree with [the] Township’s argument that a cease-and-desist
letter may function as a Section 616.1 [of the MPC] enforcement notice, . . . a cease-
and-desist letter so considered must still comply with the notice requirements of
Section 616.1 [of the MPC].” Esposito, 210 A.3d at 1150 n.7 (emphasis added).
Nonetheless, the ZHB insists that “the plain language of [Sections
909.1 and 914.1(b) of] the MPC expressly authorizes appeals from ‘the
determination of the zoning officer.’ It does not require that an enforcement notice
pursuant to [Section 616.1(b) of the MPC] be issued as a legal prerequisite to an
appeal to a zoning hearing board.” ZHB Br. at 16 (quoting 53 P.S. § 10909.1(a)(3)).
The ZHB argues that the Letters were determinations from which E&R failed to
timely appeal, thereby depriving the ZHB of jurisdiction in the instant matter.
The Pennsylvania Supreme Court has observed:
A fundamental principle in statutory construction is that
we must read statutory sections harmoniously. Parts of a
statute that are in pari materia, i.e., statutory sections that
relate to the same persons or things or the same class of
persons and things, are to be construed together, if
possible, as one statute. “If they can be made to stand
together[,] effect should be given to both as far as
possible.” [Commonwealth v.] Off[.] of Open Records,
103 A.3d [1276,] 1284 [(Pa. 2014)] (quoting Kelly v. City
of Phila[.], . . . 115 A.2d 238, 245 ([Pa.] 1955)). In
ascertaining legislative intent, statutory language is to be
interpreted in context, with every statutory section read
11
“together and in conjunction” with the remaining
statutory language, “and construed with reference to
the entire statute” as a whole. B[d.] of Revision of Taxes,
City of Phila[.] v. City of Phila[.], . . . 4 A.3d 610, 622
([Pa.] 2010). We must presume that in drafting the statute,
the General Assembly intended the entire statute,
including all of its provisions, to be effective. Importantly,
this presumption requires that statutory sections are not
to be construed in such a way that one section operates
to nullify, exclude[,] or cancel another, unless the
statute expressly says so.
Tr. Under Agreement of Taylor, 164 A.3d 1147, 1157 (Pa. 2017) (emphasis added;
citations omitted). “A conflict between various statutes or parts thereof is to be
avoided and, if possible, the apparently conflicting provisions must be construed
together with the more specific provisions prevailing over the general ones.” Hous.
Auth. of Cnty. of Chester v. Pa. State Civ. Serv. Comm’n, 730 A.2d 935, 946 (Pa.
1999).
The ZHB urges this Court to interpret Section 914.1(b) of the MPC to
require the recipient of a defective enforcement notice to appeal to the ZHB from
said notice as a determination or waive his appeal rights thereunder.8 However, this
Court may not interpret Section 914.1(b) of the MPC in a vacuum. Here, because
the determinations involve purported zoning ordinance violations, this Court cannot
ignore the MPC’s statutory provisions specifically addressing “violation[s] of [a]
zoning ordinance[.]” 53 P.S. § 10616.1(a). “This Court has determined that []
Section 616.1(c) [of the MPC’s] requirements are mandatory and that notices
without all required information do not satisfy [] Section 616.1(c) [of the MPC’s]
requirements.” Esposito, 210 A.3d at 1149 (emphasis added). Accepting the ZHB’s
interpretation would render Section 616.1 of the MPC and the mandatory
8
Such would include a defective enforcement notice that excludes the required notification
informing the recipient of his/her right to appeal to the zoning hearing board in accordance with
the zoning ordinance’s time constraints and procedures. See 53 P.S. § 10616.1(c)(5).
12
requirements therein a nullity (including the appeal notification provision in Section
616.1(c)(5) of the MPC) because municipalities could ignore Section 616.1 of the
MPC with impunity as long as the recipient does not appeal to the ZHB. Consistent
with Taylor and Housing Authority, this Court will not permit Section 914.1(b) of
the MPC to nullify a municipality’s obligations under Section 616.1(a) of the MPC.
The ZHB further contends that permitting E&R to pursue its appeal
before the ZHB under the instant circumstances would vitiate the MPC’s legislative
purpose to timely resolve zoning disputes; specifically, Section 105 of the MPC’s9
9
Section 105 of the MPC states:
It is the intent, purpose and scope of this [MPC] to protect and
promote safety, health and morals; to accomplish coordinated
development; to provide for the general welfare by guiding and
protecting amenity, convenience, future governmental, economic,
practical, and social and cultural facilities, development and growth,
as well as the improvement of governmental processes and
functions; to guide uses of land and structures, type and location of
streets, public grounds and other facilities; to promote the
conservation of energy through the use of planning practices and to
promote the effective utilization of renewable energy sources; to
promote the preservation of this Commonwealth’s natural and
historic resources and prime agricultural land; to encourage
municipalities to adopt municipal or joint municipal comprehensive
plans generally consistent with the county comprehensive plan; to
promote small business development and foster a business-friendly
environment in this Commonwealth; to ensure that municipalities
adopt zoning ordinances which are generally consistent with the
municipality’s comprehensive plan; to encourage the preservation
of prime agricultural land and natural and historic resources through
easements, transfer of development rights and rezoning; to ensure
that municipalities enact zoning ordinances that facilitate the present
and future economic viability of existing agricultural operations in
this Commonwealth and do not prevent or impede the owner or
operator’s need to change or expand their operations in the future in
order to remain viable; to encourage the revitalization of established
urban centers; and to permit municipalities to minimize such
problems as may presently exist or which may be foreseen and
wherever the provisions of this act promote, encourage, require or
13
reference to “the improvement of governmental processes and functions[.]” 53 P.S.
§ 10105. The ZHB cites to various MPC provisions promoting disposition of land
development and zoning disputes, including Section 908 of the MPC, 53 P.S. §
10908 (requiring timely zoning application hearings and dispositions and providing
for deemed approval where the ZHB fails to render a decision within the time
required) and Sections 914.1(b) (prohibiting an appeal to the ZHB filed beyond 30
days) and 909.1(a)(3) (conferring on the ZHB exclusive jurisdiction appeals from
zoning officer determinations) of the MPC, 53 P.S. §§ 10914.1(b), 10909.1(a)(3).
The ZHB asserts:
The purpose of this legislatively-mandated expedited
procedure is to avoid precisely what transpired in this
case[,] with seemingly unending correspondence and
positioning back and forth between the parties rather than
the prompt and timely appeal to a zoning hearing board for
the resolution of the dispute. Prompt resolution of land
use disputes is to the benefit of both the municipality and
the landowner to fulfill the [l]egislative mandate “to
improve governmental processes and functions,” not the
least of which is to conserve costs to both the landowner
and the municipality (i.e., the taxpayers who support local
government).
To permit an applicant to procrastinate . . . appealing to a
zoning hearing board [] whenever it best suits the
landowner defeats the purpose of the [l]egislature in
enacting the MPC. E&R’s dilatory behavior and
procrastination cannot be rewarded by this Honorable
Court.
ZHB Br. at 26. Notwithstanding:
authorize governing bodies to protect, preserve or conserve open
land, consisting of natural resources, forests and woodlands, any
actions taken to protect, preserve or conserve such land shall not be
for the purposes of precluding access for forestry.
53 P.S. § 10105.
14
As we observed in Gibraltar Rock[, Inc. v. New Hanover
Township Zoning Hearing Board, 68 A.3d 1012, 1019 (Pa.
Cmwlth. 2013)], “the purpose of [the MPC’s] mandatory
time limits is to protect an applicant from dilatory
conduct by the municipality.” [Id.] at 1020 (quoting
Nextel Partners, Inc. v. Clarks Summit Borough/Clark
Summit Borough Council, 958 A.2d 587, 593 (Pa.
Cmwlth. 2008)).
All State Signz Co. v. Burgettstown Borough, 154 A.3d 416, 421 (Pa. Cmwlth. 2017)
(emphasis added). Requiring the recipient of a defective enforcement notice to
appeal or forfeit attendant appeal rights where the municipality has not complied
with mandatory MPC provisions provides no such protections. Rather, it would
protect a municipality from its own misdeeds. Accordingly, the ZHB’s argument
fails.
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
E&R Partners, LP :
:
v. :
:
Robinson Township Zoning Hearing :
Board :
:
v. :
:
Township of Robinson :
:
Appeal of: Robinson Township : No. 831 C.D. 2022
Zoning Hearing Board :
ORDER
AND NOW, this 20th day of February, 2024, the Allegheny County
Common Pleas Court’s June 30, 2022 order is affirmed.
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ANNE E. COVEY, Judge