Opinion
No. 1942 C.D. 2011
12-05-2012
Ledwina Fircak v. North Strabane Township and North Strabane Township Zoning Hearing Board and Margaret George and Daniel George v. North Strabane Township and North Strabane Township Zoning Hearing Board Appeal of: Margaret George and Daniel George
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this zoning appeal with a unique procedural posture, Margaret and Daniel George (collectively, Applicants) ask whether the Court of Common Pleas of Washington County (trial court) erred in determining Applicants' use of their property for the parking and storage of excavation and construction equipment did not constitute a valid nonconforming use.
Applicants do not challenge the trial court's decision on the merits; rather, they assert the North Strabane Township Zoning Hearing Board (ZHB), and, on further appeal, the trial court, lacked subject matter jurisdiction over this matter. Because factual issues exist regarding whether the ZHB and the trial court did, in fact, have subject matter jurisdiction over Applicant's request for relief, we vacate and remand for further proceedings to fully evaluate this issue.
I. Factual and Procedural History
Margaret George owns the property located at 884 Linden Road, Eighty Four, North Strabane Township (subject property), which lies in a residential-agricultural zoning district. Margaret and her son Daniel reside on the subject property. Additionally, Daniel uses the subject property for the parking and storage of construction and excavation equipment in connection with his business.
On February 12, 2010, Margaret George filed a pre-printed form, entitled "Notice of Appeal" with the ZHB, seeking an "interpretation" of Section 1701(A) of the North Strabane Township Zoning Ordinance (zoning ordinance) (relating to nonconforming uses) in order to "continu[e] [the] existing use" of the subject property. Reproduced Record (R.R.) at 2a-3a. A hearing ensued before the ZHB.
The record does not contain a complete copy of the zoning ordinance. However, the zoning ordinance can be viewed at TOWNSHIP OF NORTH STRABANE, PA, CHAPTER 27 ZONING, available at http://www.ecode360.com/11770574.
At the hearing, Daniel George and others testified that use of the subject property for the parking and storage of construction and excavation equipment constituted a valid nonconforming use in that it predated a prohibitory zoning enactment, which was passed in 1988. Ledwina Fircak (Objector), who owns an adjoining property, and others testified in opposition.
Thereafter, at its April 2010 meeting, the ZHB approved Applicants' "request for a nonconforming use status relative to the staging and storage of commercial or business-related construction and/or excavation equipment on the subject property[,]" with certain limitations. R.R. at 169a. Shortly thereafter, the ZHB issued a brief letter memorializing its decision on Applicants' request for an "interpretation to permit parking of construction vehicles [on the subject property]." R.R. at 181a. The ZHB's letter did not contain findings of fact or conclusions of law. Id.
Objector, through counsel, appealed to the trial court, asserting that the ZHB's decision was not supported by substantial evidence and that the ZHB erred in determining Applicants established a valid nonconforming use.
In addition, Applicants, through counsel, filed a cross-appeal, asserting the ZHB's letter decision was vague and general, lacking the specificity required by law for enforcement. Applicants also requested a de novo hearing. R.R. at 188a.
In May 2010, Objector filed a motion with the trial court to stay the proceedings before the ZHB. Specifically, she asserted that, prior to her appeal to the trial court, the ZHB informed her it intended to take further action, including clarifying its letter decision. The trial court granted the stay.
Also, on Applicants' motion, the trial court consolidated the parties' cross-appeals.
Thereafter, the ZHB's Solicitor filed the ZHB's findings of fact and conclusions of law, which further explained and clarified the ZHB's decision granting Applicants' request for recognition of its nonconforming use.
Objector then filed a motion to strike the ZHB's newly filed findings of fact and conclusions of law and, alternatively, a response to the ZHB's findings and conclusions. Objector also requested a de novo hearing before the trial court. Additionally, Applicants' counsel filed proposed findings of fact and conclusions of law in which Applicants fully adopted the ZHB's findings and conclusions.
The trial court subsequently scheduled and conducted a de novo hearing. After the hearing, the trial court issued a decision that contained findings of fact and conclusions of law in which it denied Applicants' request to recognize the use of the subject property for the staging and storage of commercial- or business-related construction and excavation equipment as a valid nonconforming use.
In so doing, the trial court credited Objector's testimony that Applicants' storage use did not lawfully predate the applicable zoning ordinance that prohibited it. Further, the trial court rejected Applicants' testimony to the contrary.
Applicants appealed to this Court, and the trial court directed Applicants to file a statement of matters complained of on appeal, which they did through new counsel. The trial court then issued a brief supplemental opinion further explaining its decision.
Shortly thereafter, Applicants filed a motion for leave of court to file an amended 1925(b) Statement "now for then" with the trial court. Through their motion, Applicants sought to include an assertion, set forth more fully below, that the ZHB and the trial court lacked subject matter jurisdiction over this matter. The trial court denied this motion.
In addition, after Applicants appealed to this Court, they filed an Application for Remand for the Filing of an Amended Concise Statement of Matters Complained of on Appeal Pursuant to Pa. R.A.P. 1925(c)(2).
Through their application, Applicants argued they did not initiate this action before the ZHB as an "appeal." See Appl. for Remand for the Filing of an Am. Concise Statement of Matters Complained of on Appeal Pursuant to Pa. R.A.P. 1925(c), 2/21/12, at ¶21. Rather, they completed a pre-printed "notice of appeal" form at the direction of the Township's zoning officer, who refused their January 2010 request for a permit to operate a home business and improperly advised Applicants to apply to the ZHB for nonconforming use status. Id. Applicants pointed out that the zoning officer did not issue a violation notice, which would have resulted in them filing an appeal and offering a defense that their use was a valid nonconforming use. Instead, the zoning officer advised Applicants to file an appeal form with the ZHB, which was erroneous because a landowner has no need to determine the ongoing legality of the use of its property. Applicants further asserted the appeal form they completed lacked any indication that it was intended to be a formal appeal of an adverse zoning officer determination.
In short, Applicants asserted their "appeal" to the ZHB was actually a request for an interpretation of the zoning ordinance, which essentially sought an advisory opinion regarding Applicants' use of the subject property. Applicants argued the ZHB lacked jurisdiction to issue an advisory opinion; therefore, its decision was void ab initio. They maintained that the parties' cross-appeals to the trial court challenging the merits of the ZHB's decision did not vest the trial court with jurisdiction, other than to consider whether the ZHB had jurisdiction. For these reasons, Applicants sought a remand to permit amendment of their concise statement of matters complained of on appeal or, in the alternative, an order requiring the trial court to conduct further proceedings to evaluate the existence of subject matter jurisdiction.
In response, Objector filed an answer and new matter in which she asserted the ZHB enjoyed jurisdiction here because, as Applicants (through their prior counsel) asserted in their proposed findings of fact to the trial court, their action before the ZHB arose from their January 2010 request to the zoning officer for a home occupation permit, which was denied. Objector argued that under Section 909.1(a)(3) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10909.1(a)(3), the ZHB had jurisdiction over an appeal from a zoning officer's denial of a permit.
Act of July 31, 1968, P.L. 805, as amended. Section 909.1 was added by the Act of December 21, 1988, P.L. 1329.
Upon review, a single judge of this Court denied Applicants' application for a remand without prejudice to raise the issue of subject matter jurisdiction in the parties' briefs on the merits before this Court. This matter is now before us for disposition.
II. Discussion
A. Contentions
On appeal, Applicants first contend this Court must vacate the trial court's decision because that court did not possess subject matter jurisdiction over this proceeding. Specifically, they argue this matter originated before the ZHB as a request for interpretation of a zoning ordinance. See R.R. at 2a. Applicants assert their February 2010 request for an interpretation of Section 1701(A) of the zoning ordinance (relating to nonconforming uses) did not fall within the jurisdictional framework of the ZHB. See Sections 909.1, 910.2, 912.1 of the MPC, 53 P.S. §§10909.1, 10910.2, 10912.1 ; Sections 1804-1806 of the zoning ordinance. To that end, Applicants argue their request was not an appeal of a zoning officer's determination that would have triggered the ZHB's appellate jurisdiction. They maintain that, although their request was submitted on a pre-printed form entitled "Notice of Appeal" that was provided by a Township official, the substance of their request clearly indicates it was not an appeal. R.R. at 2a-3a.
Generally, when a trial court takes additional evidence on the merits, we review the trial court's factual findings and legal conclusions for errors of law or abuses of discretion. Newtown Square East, L.P. v. Twp. of Newtown, 38 A.3d 1008 (Pa. Cmwlth. 2011).
Sections 910.2 and 912.1 were added by the Act of December 21, 1988, P.L. 1329.
More specifically, in the section of the form requesting identification of the determination under appeal, Applicants wrote "N/A." R.R. at 2a. Further, in response to a question concerning whether Applicants filed a previous application or appeal in connection with the subject property, Applicants marked the box "no." R.R. at 3a. Additionally, Applicants assert a review of the ZHB transcript makes clear that the ZHB understood the only matter before it involved Applicants' request for an "interpretation." R.R. at 16a.
Applicants further point out that no zoning officer or township official testified at the ZHB hearing. They argue the lack of such testimony indicates there was no determination by any such official here because it is customary for a municipal zoning or code enforcement official to testify in defense of a determination under appeal. Applicants maintain all parties understood that Applicants sought an interpretation of a provision of the zoning ordinance to learn their rights under the law. R.R. at 2a, 16a-17a.
To that end, Applicants assert this Court holds a zoning board lacks subject matter jurisdiction over a request for an interpretations of an ordinance, which is in the nature of a request for an advisory opinion. See Hopkins v. N. Hopewell Twp. Zoning Hearing Bd., 623 A.2d 938 (Pa. Cmwlth. 1993). Applicants argue the facts in Hopkins are identical to the facts presented here, and, therefore, Hopkins controls. Indeed, Applicants contend the ZHB's decision to consider Applicants' request for interpretation violated the well-settled rule that tribunals should not render advisory opinions. See, e.g., Philadelphia Entm't & Dev. Partners, L.P. v. City of Phila., 594 Pa. 468, 937 A.2d 385 (2007). Further, this Court specifically holds a zoning board lacks authority to render an advisory opinion. H.R. Miller Co., Inc. v. Bitler, 346 A.2d 887 (Pa. Cmwlth. 1975).
Applicants also contend the ZHB erred when it framed its April 12, 2010 "interpretation" as an approval of Applicants' request for "nonconforming use" status. R.R. at 181a. First, Applicants maintain, they never filed an application for nonconforming use status. Rather, they only sought an interpretation of a provision of the zoning ordinance relating to nonconforming uses so as to learn their rights under the law.
Second, and more importantly, Section 1704 of the zoning ordinance prohibits the ZHB from receiving, considering and approving landowner requests for registration of nonconforming uses. Instead, such requests must be submitted to the zoning officer, who determines whether the purported use constitutes a nonconforming use. Applicants contend the ZHB may only consider questions regarding the nonconforming status of a property where a landowner files an appeal of the zoning officer's denial of nonconforming use status. See 53 P.S. §10901.1(a)(3). Here, Applicants argue, they never attempted to register the subject property as a nonconforming use with the zoning officer, and they did not appeal any action, inaction or decision of a zoning officer.
Applicants also contend the zoning officer's denial of their request for a "Home Operation Permit" in January 2010 (which does not actually exist under the zoning ordinance) and a 2009 citation issued by the zoning officer prohibiting the storage of "junk" vehicles on the subject property are of no relevance here. They argue that their February 2010 request for interpretation did not reference any prior event, including the January 2010 denial; therefore, the request was not an appeal of any other prior matter. Additionally, Applicants point out the January 2010 permit denial was rendered more than 30 days before their February 2010 submission to the ZHB, and, by law, the ZHB only has jurisdiction over appeals brought within 30 days. Section 914.1 of the MPC, 53 P.S. §10914.1.
Section 914.1 was added by the Act of December 21, 1988, P.L. 1329.
In short, Applicants maintain that pursuant to Hopkins, the ZHB was required to refuse Applicants' request because it did not fall within any of the bases for the ZHB's jurisdiction under Section 909.1 of the MPC. Further, Applicants argue, because the ZHB lacked jurisdiction, the trial court, in its appellate capacity, was not vested with subject matter jurisdiction over this proceeding.
Objector responds that Applicants' challenge to the ZHB's subject matter jurisdiction is meritless. Specifically, she argues the record is replete with instances highlighting the fact that Applicants sought nonconforming use status in order to run a business at their residence. R.R. at 29a-31a, 39a, 181a, 194a, 261a-262a. Further, Objector contends, the trial court ultimately denied Applicants the nonconforming use status they sought. Objector contends that, after they lost before the trial court, and for the first time in the three years of these proceedings, Applicants claim a lack of subject matter jurisdiction. Objector asserts there is no factual or legal support for Applicants' claim.
Factually, Objector argues Applicants misrepresent the facts to this Court. Specifically, she asserts Applicants incorrectly claim this matter began with their filing of a notice of appeal on February 12, 2010 seeking merely an interpretation of the zoning ordinance. Contrary to this contention, Applicants asserted in their own proposed findings of fact to the trial court that: (1) their appeal to the ZHB arose from their January 6, 2010 request for a Home Operation Permit to conduct a commercial business at their residence; (2) the zoning officer "denied" that request; and, (3) Applicants then filed a timely appeal with the ZHB seeking nonconforming use status. R.R. at 194a, 231a.
Legally, Objector contends both Section 909.1 of the MPC and Section 1804(C) of the zoning ordinance vest the ZHB with jurisdiction over a zoning officer's denial of a permit or a zoning officer's refusal to register a nonconforming use, both of which occurred here. For these reasons, Objector argues Applicants' assertions that the ZHB lacked subject matter jurisdiction are meritless.
For its part, the Township filed a brief in which it indicates it takes no position in this matter, and it will follow and enforce any order issued by this Court. In addition, the ZHB filed a notice of non-participation.
B. Analysis
Although it is somewhat unusual that Applicants, who initiated this proceeding before the ZHB, now assert the ZHB lacked subject matter jurisdiction to entertain their request, this Court, speaking through President Judge Pellegrini, recently reiterated:
The issue of subject matter jurisdiction may be raised by the parties at any stage of the proceedings or by the court sua sponte. Lack of subject matter jurisdiction of a court or administrative tribunal to act in a matter is an issue that neither can be waived by the parties, nor can the parties confer subject matter jurisdiction on a court or tribunal by agreement or stipulation.City of Pittsburgh v. Silver, 50 A.3d 296, 299, n.9 (Pa. Cmwlth. 2012). The question of a court's jurisdiction is non-waivable. Day v. Civ. Serv. Comm'n of Borough of Carlisle, 593 Pa. 448, 931 A.2d 646 (2007).
Further, Pennsylvania courts hold that, if an adjudicative body below lacks subject matter jurisdiction, an appellate court does not acquire it on appeal. See Pa. Nat'l Guard v. Workmen's Comp. Appeal Bd. (Greenwood), 437 A.2d 494 (Pa. Cmwlth. 1981) (because Workmen's Compensation Appeal Board lacked subject matter jurisdiction to award benefits to member of Pennsylvania National Guard, this Court did not acquire jurisdiction by virtue of an appeal); Commonwealth v. Jackson, 858 A.2d 627 (Pa. Super. 2004) (because trial court lacked subject matter jurisdiction over inmate's petition to enjoin Department of Corrections from deducting funds from his account, Superior Court did not acquire jurisdiction by virtue of an appeal); see also Stacy v. Mullins, 185 Va. 837, 841, 40 S.E.2d 265, 266 (1946) ("The rule is well settled that, if the court in which the action is brought has no jurisdiction of the subject matter, the appellate court will acquire none by the appeal[.] ... The want of jurisdiction of the subject matter in the court where the action was brought, continues in every court to which the action may be appealed.") Thus, if the ZHB lacked subject matter jurisdiction over Applicants' request here, the trial court could not acquire jurisdiction by virtue of an appeal. Greenwood; Jackson.
Zoning boards are administrative agencies created by the General Assembly. Joe Darrah, Inc. v. Zoning Hearing Bd. of Spring Garden Twp., 928 A.2d 443 (Pa. Cmwlth. 2007). Their power is limited to that conferred expressly by the legislature, or by necessary implication. Id. Further, the limit to that power must be strictly construed; a doubtful power does not exist. Id.
With regard to a zoning board's jurisdiction, Section 909.1(a) of the MPC states, in pertinent part (with emphasis added):
(a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
53 P.S. §10909.1(a)(3); see also Section 1804(C) of the zoning ordinance.
* * * *
(3) Appeals from the determination of the zoning officer, including, but not limited to, the granting or denial of any permit, or failure to act on the application therefor, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.
On the other hand, this Court repeatedly holds that a zoning board lacks jurisdiction to render an interpretation of a zoning ordinance in the absence of an appeal from a zoning officer's determination or a specific request for relief or challenge. See Darrah; Hopkins; H.R. Miller.
More specifically, in H.R. Miller, this Court held a zoning board lacked jurisdiction to resolve an applicant's factual and legal "questions" regarding the proposed expansion of its quarrying operations until after the applicant requested some specific relief the zoning board could grant under the MPC (such as a variance, a special exception, relief from the action of the zoning officer, or a ruling on the substantive invalidity of an ordinance). H.R. Miller, 346 A.2d at 887. We stated: "Our examination of the relevant provisions of the MPC discloses no authority in the [zoning] [b]oard to render the purely advisory opinion sought initially by [the applicant]. ..." Id. at 888.
Thereafter, in Hopkins, we upheld a common pleas court's decision to vacate a zoning board's decision based on our determination that the zoning board lacked jurisdiction to rule on a "Request for Interpretation" of an ordinance provision. Hopkins, 623 A.2d at 939. Analyzing Section 909.1(a) of the MPC and the provisions of the MPC that set forth a zoning board's functions, we stated a zoning hearing board lacks jurisdiction to grant relief in the form of an interpretation of a zoning ordinance. Further, we reiterated our holding in H.R. Miller that a zoning board has no authority to render a purely advisory opinion in the absence of an appeal of a zoning officer's adverse determination or a specific request for relief.
More recently, in Darrah, this Court held a zoning board lacked jurisdiction to consider an appeal from a zoning officer's rejection of a landowner's request to reclassify its property from its designation as a "junkyard" to a "processing establishment" in response to the municipality's threat to enforce its ordinance against the landowner. Darrah, 928 A.2d at 445. We held that in the absence of a request for a permit, variance, special exception or challenge to the ordinance—the only matters over which a zoning board possesses jurisdiction—the board lacked jurisdiction to issue an interpretation of the ordinance, i.e., the landowner's request for reclassification of its use of the property under the ordinance. Because the zoning board lacked jurisdiction to render such an advisory opinion, we vacated its decision.
Notably, in Darrah, we reached this conclusion despite the fact that the landowner first requested that the zoning officer reclassify its property and appealed his refusal to do so. To that end, we stated the zoning officer's decision refusing to reclassify the property did not constitute an appealable "determination" under the MPC. We further noted, "[the landowner] sought this 'determination' in an effort to lock in a defense to the [t]ownship's threatened enforcement action. When and if that action takes place, [the landowner] may litigate its theory that it is not a junkyard." Id. at 448, n.8.
Here, the parties dispute whether Applicants' request before the ZHB began as an appeal from a zoning officer's determination regarding the denial of a permit or refusal to register a nonconforming use, or whether Applicants sought only an interpretation of the zoning ordinance.
In support of their contentions that the zoning officer did not render a determination prior to their application to the ZHB, Applicants point to the fact that the pre-printed "notice of appeal" completed by Applicant Margaret George only requested an interpretation of Section 1701(A) of the zoning ordinance and did not reference any prior zoning officer determination. See R.R. at 2a-3a. They also point to the fact that at the ZHB hearing, the ZHB indicated the "one matter before it" was "an application of Margaret George requesting interpretation to permit existing use of [the subject property]." See R.R. at 16a (emphasis added).
In response, Objector asserts the record is replete with references to the fact that Applicants sought recognition of a nonconforming use before the ZHB. See R.R. at 29a-31a, 39a, 181a, 194a, 261a-62a. Objector further notes that in their own proposed findings of fact submitted to the trial court, Applicants stated that the action before the ZHB was initiated as an appeal of the zoning officer's denial of a "Home Operation Permit." R.R. at 194a, 231a.
Upon review of the record citations provided in the parties' briefs, and our independent examination of the record, there is support for Applicants' position that their request before the ZHB sought an interpretation of the zoning ordinance. R.R. at 2a-3a; 16a. On the other hand, there is little, if any, underlying factual support for Objector's position that this matter arose from Applicants' appeal of an adverse determination of a zoning officer.
Nevertheless, in its decision, the trial court, who was the fact-finder here, summarized the procedural history as follows. On January 6, 2010, Applicants requested a "Home Operation Permit," which the zoning officer denied. Tr. Ct., Slip Op., 9/16/11, Finding of Fact (F.F.) No. 2(a). The zoning officer advised Applicants to apply to the ZHB for nonconforming use status. Id. Margaret George filed a timely appeal to the ZHB seeking nonconforming use status for the subject property. F.F. No. 2(b); see also F.F. No. 4 (noting this matter originated before the zoning officer and the ZHB as a request for a nonconforming use).
Notably, contrary to the trial court's finding that Applicants filed a "timely" appeal of the zoning officer's January 6, 2010 denial of the "Home Operation Permit," Applicant's "notice of appeal" to the ZHB is dated February 12, 2010, R.R. at 2a, which is more than 30 days after the zoning officer's purported permit denial, rendering any such appeal untimely and depriving the ZHB of jurisdiction over such an appeal. See 53 P.S. §10914.1(b) ("All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.") However, in light of our disposition of this case, this issue can be explored further on remand.
In light of Applicants' belated assertion that the ZHB (and, on further appeal the trial court) lacked subject matter jurisdiction, the trial court was not afforded an opportunity to address this issue, which raises factual questions. Under these circumstances, the most prudent course is a remand for a determination as to whether Applicants' request to the ZHB sought merely an interpretation of the zoning ordinance, over which the ZHB (and on further appeal the trial court) lacked subject matter jurisdiction, see Darrah, Hopkins, H.R. Miller, or a timely appeal from the denial of a permit or refusal to register a nonconforming use, over which the ZHB would possess jurisdiction. See Section 909.1(a)(3) of the MPC; Section 1804(C) of the zoning ordinance.
The zoning ordinance contains a specific procedure for a landowner to follow in order to properly register a nonconforming use. Specifically, the zoning ordinance provides (with emphasis added):
The owner of a nonconforming use shall make an application for registration of the nonconforming use; and upon presentation of documentation acceptable to the Zoning Officer that the use was lawfully in existence prior to the effective date of this chapter or any amendment that created the nonconformity, the Zoning Officer shall register the same on a map and by the Washington County Assessor's tax parcel number as a legal nonconforming use....Section 1704(1) of the zoning ordinance. The zoning ordinance also provides that: "The Zoning Officer's duties shall include the following ... [r]egister[ing] nonconforming uses ... in accordance with § 1704 of this chapter." Section 1900(2)(N) of the zoning ordinance (emphasis added).
In turn, the ZHB possesses exclusive jurisdiction to hear and render final adjudications on "appeals from determinations of the Zoning Officer," including "the registration or refusal to register any nonconforming use ...." Section 1804(C) of the zoning ordinance (emphasis added). Accord 53 P.S. §10909.1(a)(3).
Here, the record is unclear as to whether Applicants sought to register their purported nonconforming use with the zoning officer prior to initiating their action with the ZHB as required by the procedures outlined in the zoning ordinance. As set forth above, this issue can be explored further on remand.
Consequently, we vacate and remand to allow the trial court to consider the issues of (a) underlying municipal action, if any, and (b) timeliness of appeal to the ZHB.
Based on our disposition of this matter, we need not address Applicants' remaining contentions that the ZHB failed to properly transcribe its hearings and that the trial court erred in granting the parties' requests to receive additional evidence.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 5th day of December, 2012, the order of the Court of Common Pleas of Washington County is VACATED and this matter is REMANDED for proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge