Opinion
Argued September 15, 1982
October 15, 1982.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Application fees — Pennsylvania Municipalities Planning Code, Act of July 31, 1958, P.L. 805 — Constitutional challenge.
1. In a zoning case where the lower court took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board abused its discretion or committed an error of law. [379]
2. Under provisions of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, it is proper for a municipality to require the payment of a one hundred dollar filing fee with an application for a curative amendment to a zoning ordinance, when such fee represents charges to cover expenses incurred in processing and hearing such applications by the zoning board which is the administrative body created by the legislature to determine such matters. [379]
3. The presumption of constitutionality of a zoning ordinance section providing for payment of a filing fee with an application for a curative amendment is not overcome in the absence of evidence of the unreasonableness of that fee or the application of the fee provisions in a discriminatory manner. [379-80]
Argued September 15, 1982, before President Judge CRUMLISH, JR. and Judges BLATT and DOYLE, sitting as a panel of three.
Appeal, No. 2186 C.D. 1981, from the Order of the Court of Common Pleas of York County in case of Edward B. Golla et al. v. Hopewell Township Board of Supervisors and Hopewell Township Zoning Hearing Board, No. 80-S-2114.
Application for curative amendment challenging constitutionality of zoning ordinance with the Zoning Hearing Board of Hopewell Township. Application dismissed. Applicants appealed to the Court of Common Pleas of York County. Dismissal affirmed. CASSIMATIS, J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed. Application for reargument filed and denied.
Edward B. Golla, for appellants.
Gilbert G. Malone, Ports, Beers, Feldmann Malone, with him John W. Thompson and William Poole, Shoemaker and Thompson, for appellees.
Edward B. Golla and a large number of other natural and corporate landowners (appellants) appeal here a decision of the Court of Common Pleas of York County which affirmed a decision of the Hopewell Township Zoning Hearing Board (Board). The Board had dismissed the application of the appellants for failure to pay the required filing fee.
The Hopewell Township Board of Supervisors are also named as appellees.
These parties have been before us once before. In Hopewell Township Board of Supervisors v. Golla (Golla I), 58 Pa. Commw. 572, 428 A.2d 701 (1980), this Court, sitting en banc, ruled that certain sections of the Hopewell Township Zoning Ordinance (ordinance) in regard to the number of lots permissible per tract, were unconstitutional. The ordinance was later amended in an effort to comply with the mandate of Golla I, but the appellants contend that certain provisions of the ordinance still remain unconstitutional. The Board dismissed their appeal because of their refusal to pay a $100 filing fee as required by the ordinance, and consequently no decision was rendered on the merits. An appeal to the common pleas court followed and, when that court affirmed, the appellants appealed here.
This Court also found a portion of Section 1011(1) of the Pennsylvania Municipalities Planning Code (MPC), Act of June 1, 1972, P.L. ___, as amended, 53 P. S. § 11011(1), unconstitutional as violative of the doctrine of separation of powers.
Where, as here, no additional evidence is taken by the trial court, our scope of review is to determine whether or not the zoning board abused its discretion or committed an error of law. Warminster Area Child Day Care Association v. Upper Southampton Township Zoning Hearing Board, 35 Pa. Commw. 541, 386 A.2d 1076 (1978).
The appellants argue that the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10101-11202, does not authorize the imposition of fees for applications to zoning boards. The Board, on the other hand, argues that Section 618 of the MPC, 53 P. S. § 10618, wherein the local governing body is given the authority to "prescribe reasonable fees to be charged with respect to the administration of a zoning ordinance" gives it such authority. Whether or not the activities of the Board in receiving applications are within the ambit of "administration", therefore, is the question before us.
The appellants argue that the term "administration", undefined by the MPC, refers to the work of the executive branch of government and that the Board, by its nature, is judicial or quasi-judicial, not executive. Zoning boards, however, have been clearly held not to be judicial, but administrative bodies, creatures of the legislative body. Appeal of Emanuel Baptist Church, 26 Pa. Commw. 427, 364 A.2d 536 (1976). Moreover, as the trial court correctly recognized, townships have the right to charge fees, if reasonable, based on the cost of the services provided, Raum v. Tredyffrin Township Board of Supervisors, 29 Pa. Commw. 9, 370 A.2d 777 (1977), and the fee charged here by the ordinance is a reasonable and proper exercise of the township's power to provide municipal services. Moreover, in Borough of Brookhaven v. BP Oil Co., 48 Pa. Commw. 128, 409 A.2d 494 (1979), this Court expressly stated that Section 618 of the MPC allows a municipality to promulgate and charge zoning administration fees subject, of course, to the requirement of reasonableness. Brookhaven, we observe, relied upon Buckingham Township v. Yaroschuk, 4 Pa. D. C.3d 790 (1977), wherein it was held that a Township may charge applicants, under Section 618, for the expenses incurred in processing and hearing applications for curative amendments. The $100 fee, litigated here, is not distinguishable from the charges assessed in the above-cited cases. See also Bucks County Housing Development Corp. v. Plumstead Township, 45 Pa. Commw. 532, 406 A.2d 832 (1979) (impliedly upholding $125 fee).
The fee structure in Raum was struck down as bearing no rational relationship to the cost of the services, not because it was ultra vires.
The appellants also advance constitutional arguments based on equal protection and due process. We have no cause to discuss these arguments inasmuch as there was no evidence before either the Board or the trial court as to the unreasonableness of the set fees or as to the discriminatory fashion in which the fee schedule was applied here. The appellants have attacked the validity of the ordinance, not the arbitrary or unreasonable nature of it, and thus have not satisfied their heavy burden of overcoming the presumption of constitutionality.
For all of the above reasons, the decision of the trial court will be affirmed.
ORDER
AND NOW, this 15th day of October, 1982, the decision of the Court of Common Pleas, York County, Pennsylvania in the above-captioned matter is hereby affirmed.