zoning hearing in Pennsylvania

2021“A zoning hearing board abuses its discretion when its factual findings are unsupported by substantial evidence.” Id. (citing Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637 (Pa. 1983)). 8 otherwise lawful.” (Dipal’s Br. at 19 (quoting Zoning Ordinance §350-53) (emphasis added).) A “building,” Dipal notes, is defined as a “structure having a roof supported by columns or walls, for the housing or enclosure of persons, animals or chattels,” and buildings may be “detached,” “semidetached,” or “attached,” depending upon whether it has zero, one, or two walls in common wit

2021An abuse of discretion occurs when the zoning hearing board’s findings are not supported by substantial evidence, “which is such relevant evidence that a reasonable person would ‘accept as adequate to support a conclusion.’” Id. (quoting Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983)).

2021See Smith v. Zoning Hearing Bd., 734 A.2d 55, 57 (Pa. Cmwlth. 1999) (a zoning hearing board’s interpretation of its own ordinance is entitled to great weight and deference from a reviewing court).

2020For any property shown on the Historic Resource Map, when the property owner chooses to pursue a special exception, the requirements of this section shall apply, in addition to the otherwise applicable requirements of the Subdivision and Land Development Ordinance, and the underlying zoning district regulations.” Ordinance §1298.19(e). 14 The ZHB further supported its finding that its role is not that of the Township BOS, citing Smith v. Zoning Hearing Bd. of Huntingdon Borough: “The basis for the judicial deference is the knowledge and expertise that a zoning hearing board possesses to interp

2026A conditional use application is reviewed by the “municipal governing body rather than the zoning hearing board.” In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006) (citation omitted).

2025“A conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal governing body rather than the zoning hearing board.” In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006).

2026Such deference is appropriate because a zoning hearing board, as the entity charged with administering a zoning ordinance, possesses knowledge and expertise in interpreting that ordinance.” Risker v. Smith Township Zoning Hearing Board, 886 A.2d 727, 731 (Pa. Cmwlth. 2005) (internal citation omitted).

2024Such 9 deference is appropriate because a zoning hearing board, as the entity charged with administering a zoning ordinance, possesses knowledge and expertise in interpreting that ordinance.” Risker v. Smith Township Zoning Hearing Board, 886 A.2d 727, 731 (Pa. Cmwlth. 2005) (internal citation omitted).

2025See id. 18 At the Board hearing, Murray testified that he first learned of the Township’s stay of its enforcement action against Scioto/ReMed and the Board of Commissioners’ amendment to Ordinance 1974 in June 2023.

2016This Court has “consistently held that tax base concerns cannot be decisive in a zoning case.” Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274, 1279 (Pa. Cmwlth. 1996); see also Spencer v. McKean Township Zoning Hearing Board, 537 A.2d 943 , 945 n.3 (Pa. Cmwlth. 1988); White Advertising Metro, Inc. v. Zoning Hearing Board of Susquehanna Township, 453 A.2d 29 , 34 & n.11 (Pa. Cmwlth. 1982); A. J.

2026Such deference is appropriate because a zoning hearing board, as the entity charged with administering a zoning ordinance, possesses knowledge and expertise in interpreting that ordinance.” Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 968 (Pa. Cmwlth. 2015).

2021Such language does not require a specific level of deference in every case, but cautions that, if a zoning hearing board does not “denounce” a zoning officer’s interpretation, that interpretation is entitled to “some weight.” Id.

2023“Such deference is appropriate because a zoning hearing board, as the entity charged with administering a zoning ordinance, possesses knowledge and expertise in interpreting that ordinance.” City of Hope, 890 A.2d at 1143 .

2015It is well settled that, “[d]ue to their expertise and experience, ‘a zoning hearing board’s interpretation of its own zoning ordinance is entitled to great weight and deference.’” Hamilton Hills Group, LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 (Pa. Cmwlth. 2010) (quoting City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006)).

2024“Once a landowner has been given notice of a zoning violation pursuant to Section 616.1, that landowner can contest the asserted violations only by way of appeal to the municipality’s zoning hearing board[.]” City of Erie v. Freitus, 681 A.2d 840, 842 (Pa. Cmwlth. 1996).

2024“Once a landowner has been given notice of a zoning violation pursuant to Section 616.1, that landowner can contest the asserted violations only by way of appeal to the municipality’s zoning hearing board[.]” City of Erie v. Freitus, 681 A.2d 840, 842 (Pa. Cmwlth. 1996).

2024A zoning hearing board is “free to reject even uncontroverted testimony it finds lacking in credibility, including testimony offered by an expert witness.” Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 (Pa. Cmwlth. 2005).

2024Similarly, in Taliaferro, we concluded that a zoning hearing board properly granted a use variance for the construction of a self-storage facility on a property zoned residential where substantial evidence in the record established that the character of the area surrounding the property was inconsistent with a residential use, which would have been impractical. 873 A.2d at 812 .

2025Zoning Hearing Bd., 300 A.3d 1121 , 1126 (Pa. 2 “Where, as here, the trial court did not take any additional evidence, appellate review of the decision of a zoning hearing board is limited to determining whether the board abused its discretion or committed legal error.” Township of Exeter v. Zoning Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009). 3 The Court remains “bound by the facts as found by the Board that are supported by substantial evidence,” which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Slice of Life, LLC v. Hamilton

2020Id. at 663 . 12 53 P.S. § 10916.1(h), added by the Act of December 21, 1988, P.L. 1329. 8 the provisions of the comprehensive plan, when a party challenges the validity of the zoning ordinance, the zoning hearing board “shall consider the availability of uses” under the zoning ordinances of other municipalities within a reasonable geographic area that also participate in the comprehensive plan. 53 P.S. § 10916.1(h) (emphasis added).

2024Also see Reihner v. City of Scranton Zoning Hearing Board, 176 A.3d 396, 400 (Pa. Cmwlth. 2017) (“it is an 14 abuse of discretion for a zoning hearing board to narrow the terms of an ordinance and further restrict the use of a property”).

2024Indeed, “[t]his Court has held that it is an abuse of discretion for a zoning hearing board to narrow the terms of an ordinance and further restrict the use of a property.” Reihner v. City of Scranton Zoning Hearing B[d.], 176 A.3d 396, 400 (Pa. Cmwlth. 2017).

2019We have held previously that “[t]he language of [MPC] [S]ection 909.1(a)(3) could not be clearer,” as this “[S]ection expressly gives the zoning hearing board exclusive jurisdiction to ‘hear and render final adjudications’ in cease-and-desist order cases[.]” Johnston v. Upper Macungie Township, 638 A.2d 408, 412 (Pa. Cmwlth. 1994) (emphasis in original).

2017The Majority explains that “[i]f a landowner does not appeal a zoning violation notice to the zoning hearing board, the failure to appeal renders the violation notice unassailable,” and that “neither the district justice nor a common pleas court may conduct a de novo review of the question of whether the landowner violated the zoning ordinance.” (Majority Op. at 14 (emphasis omitted) (quoting Twp. of Penn v. Seymour, 708 A.2d 861, 864-65 (Pa. Cmwlth. 1998)).) Moreover, a landowner “can contest the asserted [zoning] violations only by way of appeal to the municipality’s zoning hearing board and

2025Id. at 292 .

2018Larsen v. Zoning Board of Adjustment of City of Pittsburgh, 672 A.2d 286, 288-89 (Pa. 1996); Nowicki v. Zoning Hearing Board of Borough of Monaca, 91 A.3d 287 , 291 n.1 (Pa. Cmwlth. 2014). 6 courts are guided by the principles of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991, which provides that “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.” Patricca v. Zoning Board of Adjustment of City of Pittsburgh, 590 A.2d 744, 747-48 (Pa. 1991) (quoting 1 Pa. C.S. § 1903(a)).

2023Co. v. Borough of Aspinwall, 558 A.2d 181 , 185 n.6 (Pa. Cmwlth.1989)). 9 It is well settled that we must avoid the inclination to measure and assess the multitude of factors and considerations that support a zoning ruling, and “must exercise self-restraint as to substituting our opinions far removed from the particular zoning hearing for the well-considered decision of [the Board].” Cohen v. Zoning Bd. of Adjustment of City of Phila., 276 A.2d 352, 355 (Pa. Cmwlth. 1971).

2023In light of this limited standard of review, we must avoid the inclination to measure and assess the multitude of factors and considerations that support a zoning ruling, and “must exercise self-restraint as to substituting our opinions far removed from the particular zoning hearing for the well-considered decision of [the Zoning Board].” Cohen v. Zoning Bd. of Adjustment of City of Phila., 276 A.2d 352, 355 (Pa. Cmwlth. 1971).

2021She also directs our attention to Baker v. Zoning Hearing Board of West Goshen Township, Chester County, 367 A.2d 819 (Pa. Cmwlth. 1976), and its progeny, wherein we interpreted Section 908(3) of the MPC as providing that, when a person appears before a zoning hearing board as a party without objection, that person has party status before a zoning hearing board and standing to appeal, because, as a party, the person necessarily has aggrieved status as a result of the adverse zoning decision.

2021The landowner of the property at issue in Baker, which was located in West Goshen Township, Chester County, took an appeal to the zoning hearing board from a zoning officer’s denial of a permit. [Baker,] 367 A.2d at 820 .

2017A zoning hearing board “has an obligation to construe the words of an ordinance as broadly as possible to give the landowner the benefit of the least restrictive use when interpreting its own Zoning Code.” Riverfront Development Group, LLC v. City of Harrisburg Zoning Hearing Board, 109 A.3d 358, 366 (Pa. Cmwlth. 2015).

2017Further, a zoning hearing board “has an obligation to construe the words of an ordinance as broadly as possible to give the landowner the benefit of the least restrictive use when interpreting its own Zoning Code.” Riverfront Development Group, LLC v. City of Harrisburg Zoning Hearing Board, 109 A.3d 358, 366 (Pa. Cmwlth. 2015).

2021It is well-settled that, in general, “a zoning hearing board does not have standing to appeal an order because it is not ‘injuriously affected’ by the order.” Burrows, 584 A.2d at 1074 (quoting Appeal of Bd. of Adjustment, Landsdowne Borough, 170 A. 867, 868 (Pa. 1934)).

1995Furthermore, the ZHB could not have appealed the trial court’s decision, as an appellant, Lansdowne Borough Board of Adjustment’s Appeal, 313 Pa. 523 , 170 A. 867 (1934), therefore its “appeal” to this Court should be quashed for lack of standing. 6 The long-settled rule in this Commonwealth is that a zoning hearing board has no standing to appeal a final order of a court of common pleas.

2024See Thompson v. Zoning Hr’g Bd. of Horsham Twp., 963 A.2d 622 , 625 n.6 (Pa. Cmwlth. 2009) (holding that a standing claim was waived due to a failure to raise it before the zoning hearing board); Cohen v. Zoning Bd. of Adjustment of City of Pittsburgh, 417 A.2d 852, 853 (Pa. Cmwlth. 1980) (same).10 Our Supreme Court explained that administrative agencies must have the “first opportunity to correct any such alleged error” “as early as possible,” which ensures “an efficient use of judicial resources.” Station Square Gaming L.P. v. Pa. Gaming Control Bd., 927 A.2d 232, 240 (Pa. 2007) (Station).

2021In Thompson, a zoning appeal which arose in Horsham Township pursuant to the MPC, the landowner sought a use and dimensional variance from the zoning hearing board. [Thompson,] 963 A.2d at 623 .

2026Id.

2024It connected the need for permanence and stability to the type of zoning district involved, indicating that upholding the zoning hearing board was “entirely consistent with the long-recognized goals of creating a residential zoning district.” Slice of Life, 207 A.3d at 899 ; see also Albert, 864 A.2d at 409 (explaining that single-family zoning districts “create residential neighborhoods in which the residents may develop a sense of community and a shared commitment to the common good of that community”).

2020Spahn v. Zoning Bd. of Adjustment, 977 A.2d 1132, 1142 (Pa. 2009). 6 Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101-13157. 7 Added by Section 2 of the Act of November 30, 2004, P.L. 1523, No. 193. 5 In contrast to the Pennsylvania Municipalities Planning Code (MPC),8 the Zoning Code neither provides a definition of who is a party nor limits who may appear and participate in a zoning hearing.9 Scott, 126 A.3d at 948 .

2020As the Supreme Court observed, “[t]he intent of Section 17.1 [of the Home Rule Act] was to give the specific power of standing to appeal a decision of a zoning hearing board within a city of the first class to the governing body vested 7 with legislative powers and to ‘aggrieved persons.’”10 Spahn, 977 A.2d at 1143 .

2002See also Crown Communications v. Zoning Hearing Board of the Borough of Glenfield, 679 A.2d 271, 275 (1996), affirmed, 550 Pa. 266 , 705 A.2d 427 (1997) (if an applicant wishes to raise a validity challenge at any time during a zoning hearing board proceeding, even if only as an alternative theory, it must make this known in a public notice prior to the meeting in accordance with § 916.1 of the MPC).

2002See also Crown Communications v. Zoning Hearing Board of the Borough of Glenfield, 679 A.2d 271, 275 (1996), affirmed, 550 Pa. 266 , 705 A.2d 427 (1997) (if an applicant wishes to raise a validity challenge at any time during a zoning hearing board proceeding, even if only as an alternative theory, it must make this known in a public notice prior to the meeting in accordance with § 916.1 of the MPC).

2026However, “because we review the zoning hearing board’s decision, we do not address arguments challenging the trial court’s decision.” RDM Group v. Pittston Township Zoning Hearing Board, 311 A.3d 1216 , 1224 (Pa. Cmwlth. 2024) (citing Pham v. Upper Merion Township Zoning Hearing Board, 113 A.3d 879 , 887 n.6 (Pa. Cmwlth. 2015)). 17 “Where the trial court has taken no additional evidence, appellate review is limited to determining whether the zoning hearing board committed an error of law or a manifest abuse of discretion.” Hertzberg v. Zoning Board of Adjustment, 721 A.2d 43 , 46 (Pa. 2004).

2016(Common pleas op. at 3 (emphasis added).) Thus, common pleas held that “the [ZHB] carefully considered the law and the facts of this case, and that it committed no error of law or abuse of discretion when it [denied Appellants’ appeal and request for a de minimis dimensional variance].” (Common pleas op. at 5.) This appeal followed.5 On appeal to this Court, Appellants argue that common pleas erred by: (1) “fail[ing] to determine that the Appellant[s’] basketball court constituted a sports court,” (Appellants’ Amended Br. at iv); (2) applying res judicata in denying the 5 “Where the trial cour

2017See Bailey v. Upper Southampton Township, 690 A.2d 1324, 1326 (Pa. Cmwlth. 1997) (stating that “a conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal legislative body, rather than the zoning hearing board”). 3 Section 150-215 of the Zoning Ordinance sets forth the standards and criteria required for the grant of a conditional use, in relevant part: A. The applicant shall establish by credible evidence that the use . . . complies with the declaration of legislative intent as stated in Article I of this chapter and the declaration of legi

2017See Bailey v. Upper Southampton Township, 690 A.2d 1324, 1326 (Pa. Cmwlth. 1997) (stating that “a conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal legislative body, rather than the zoning hearing board”). 3 Section 150-215 of the Zoning Ordinance sets forth the standards and criteria required for the grant of a conditional use, in relevant part: A. The applicant shall establish by credible evidence that the use . . . complies with the declaration of legislative intent as stated in Article I of this chapter and the declaration of legi

2023See Segal v. Zoning Hearing B[d.] of Buckingham Twp., 771 A.2d 90, 94 (Pa. Cmwlth. 2001) (argument not raised before [the zoning hearing] board is waived on appeal).

2021De Minimis Doctrine Applicant also asserts that the variance sought is de minimis, and therefore, the ZHB erred in failing to assess its request on that basis. 7 During argument, counsel for Applicant again articulated the hardship as having only a partially finished apartment, implying that the incomplete apartment space that is not usable as a residence constitutes the hardship. 11 A de minimis variance may be granted “in very limited situations where the proposed dimensional deviations from the zoning requirement [are] relatively minor, and where the insistence in rigid compliance is not ab

2020A zoning hearing board, ‘as fact finder, is the ultimate judge of credibility and resolves all conflicts of evidence.’ In re Appeal of Brickstone Realty Corp[.], 789 A.2d 333, 339 (Pa. Cmwlth. 2001).

2019A zoning hearing board, “as fact finder, is the ultimate judge of credibility and resolves all conflicts of evidence.” In re Appeal of Brickstone Realty Corporation, 789 A.2d 333, 339 (Pa. Cmwlth. 2001).