Opinion
No. 73 C.D. 2013
07-08-2014
June L. Ulsh v. Zoning Hearing Board of Lower Paxton Township and Triple Crown Corporation Appeal of: Triple Crown Corporation
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Triple Crown Corporation (Landowner) appeals an order of the Court of Common Pleas of Dauphin County (trial court) denying Landowner's application for a variance to construct 449 residential units on its property. Landowner had received a deemed approval of the variance from the Zoning Hearing Board of Lower Paxton Township, but it was appealed by an objector, Harry Ulsh. After the trial court reviewed the merits of the case de novo, it concluded that Landowner did not prove a hardship as necessary to warrant the grant of a variance. The primary issue in this appeal is whether the trial court abused its discretion by relying on the record made before the Zoning Hearing Board instead of conducting a new evidentiary hearing. For the reasons that follow, we affirm.
Background and Procedural History
Landowner seeks to construct a mix of single-family homes, townhouses and condominiums on its 246-acre parcel of land in Lower Paxton Township known as Stray Winds Farm. The parcel is located in the R-1 District, which allows two residential units per acre. However, the Township's zoning ordinance adjusts that number of units by the property's topography. Because woodlands, wetlands, flood plains and steep slopes cover 31% of the Landowner's parcel, this topography limits development to a maximum of 374 residential units. On March 31, 2006, Landowner applied for a variance to construct 118 additional units, for a total of 492 residential units. On April 27, 2006, the Zoning Hearing Board held a hearing to consider the variance request.
Section 1177.06(b) of the Lower Paxton Township Zoning Ordinance required that the number of units allowable on a tract for development be determined as follows:
[G]ross acreage of a parcel, minus, one-half of acreage in 100 year floodplain, minus, one-half of acreage in slope over fifteen percent (15%), times, maximum density of underlying zoning district, equals, total number of dwelling units permitted.Section 1177.06(b) was part of the Township's zoning ordinance in effect when Landowner filed its variance applications. In July 2006, the Township amended the ordinance so that density is now governed by Section 320.E.2, which requires a yield plan to "accurately show the maximum number of dwelling units that would be possible under Township ordinances in effect as of June 1, 2005 under the regulations of the zoning district that applied immediately prior to the rezoning to the R-C district." ORDINANCE NO. 2006-5, July 11, 2006, as amended, entitled LOWER PAXTON TOWNSHIP ZONING ORDINANCE, §320.E.2, page 3-73. The Zoning Ordinance is Title 5 of Part 11 of the Codified Ordinances of Lower Paxton Township.
The yield plan analysis would actually allow 377 residential units, but Landowner agreed to eliminate three of the proposed units based on concerns of neighbors.
At this hearing, Mark DiSanto, a shareholder of Landowner, testified in support of a variance. He recited a history of the lengthy negotiations that took place between Landowner and a group of concerned citizens called the Stray Winds Area Neighbors. As a result of these discussions, Landowner re-worked its plan, limiting the project to 449 residential units, as opposed to 492 units. Landowner also agreed to replace some of the proposed multi-family dwellings with single-family homes; to increase buffer zones; and to designate some of the housing for seniors only. DiSanto testified that the parcel's topography created a hardship that authorized a variance.
DiSanto explained: "So this plan that I'm showing you today reflects the reduction to the density variance of 75 homes not 118. I want to emphasize that.... So the variance request we'd like to amend to 75 before I proceed." Notes of Testimony, April 27, 2006, at 18.
Harry Ulsh, who resided 400 feet from the proposed development, attended the hearing before the Zoning Board to oppose the variance. Ulsh testified that he was concerned about Landowner's proposal because the adjacent roads were already congested. In response to Ulsh's stated concerns, DiSanto offered to spend $1.8 million to improve these roads. DiSanto stressed that Landowner would need a variance for 75 additional units in order to fund the road improvements.
The Zoning Board voted to deny the variance. However, it did not issue a written decision within 45 days of the vote, as is required by Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10908(9).
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(9). Section 908(9) states, in relevant part, as follows:
The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the board or hearing officer.... Except for challenges filed under section 916.1 [substantive validity challenges] 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 or on the record to an extension of time.53 P.S. §10908(9).
In July 2006, the Township rezoned Landowner's parcel from R-1 to R-C, residential cluster. After receiving approval of its proposed development from the Township Planning Commission, Landowner submitted a second variance application to allow construction of 449 residential units. In return, Landowner committed to fund road improvements at a cost of $1.8 million.
The R-C zone requires a yield plan analysis and permits the same density of 374 total units, but would allow some of the residential units to be clustered differently than in the R-1 zone.
On July 27, 2006, the Zoning Board conducted a hearing on Landowner's second variance application. The April 2006 hearing record was incorporated into the July 2006 hearing record. Landowner again asserted that the parcel's topography caused a hardship and that it needed to be able to construct 75 additional residential units in order to fund the $1.8 million in road improvements. Andrew Snyder, who resided on the southern border of Landowner's parcel, attended the hearing and opposed the application.
This hearing transcript is not part of the record in the present case. Our summary of the hearing is taken from this Court's opinion in Snyder v. Zoning Hearing Board of Lower Paxton Township and Triple Crown Corporation, (Pa. Cmwlth., No. 983 C.D. 2008, filed January 28, 2009).
On September 7, 2006, the Zoning Board issued a written decision approving Landowner's second variance application, with the condition, inter alia, that Landowner contribute $1.8 million for offsite public street improvements. The Zoning Board found that the parcel's unique topographical features reduced the developable area in the parcel and that the inadequate roads constituted a hardship that justified a variance. Snyder appealed, and Landowner intervened.
The conditions were:
(a) Lots 3 and 6 on the plan shall be developed as an age restricted community;
(b) [Landowner] shall make public road improvements to Crums Mill Road and McIntosh Road and in conjunction with the Township, to the extent necessary to the McIntosh/Colonial Road Intersection, [Landowner's] contribution to be $1.8 million. All such work shall be subject to the approval of the Township Engineer and subject to the normal planning review process;
(c) Total density shall not exceed 449 units;
(d) The development shall not have direct access to Hillsdale Road, Valley View Road or Woodcrest Circle.
On November 17, 2006, while Snyder's appeal was in the briefing stage, Landowner instituted a mandamus action against the Zoning Board and the Township, asserting a deemed approval of its March 31, 2006, variance application. On September 27, 2007, Landowner, the Zoning Board and the Township settled the mandamus action. The settlement required the Zoning Board to give public notice of the deemed approval of Landowner's variance application and limited Landowner to construction of "449 units, pursuant to all conditions agreed to by [Landowner] and imposed by [the Zoning Board] in the hearing of July 27, 2006 [on the second variance application]." Reproduced Record at 25a (R.R. ___). The Zoning Board gave public notice of the deemed approval of Landowner's variance in The Paxton Herald on November 7 and 14, 2007. Harry Ulsh timely appealed the deemed approval of the variance, and Landowner intervened.
On May 7, 2008, the trial court affirmed the Zoning Board's grant of Landowner's July 2006 variance application, and Snyder appealed. This Court reversed. See Snyder v. Zoning Hearing Board of Lower Paxton Township and Triple Crown Corporation, (Pa. Cmwlth., No. 983 C.D. 2008, filed January 28, 2009). This Court held that Landowner was not entitled to a variance because it did not prove a hardship. While recognizing the property's unique topographical features, the Court held that the record did not show that the property could not be used for any purpose or only at a prohibitive expense. With respect to Landowner's argument that it could not fund the $1.8 million in street improvements without a variance, this Court concluded this was not a cognizable hardship. Rather, it was purely economic and was a "hardship" of Landowner's own making because its commitment to upgrade the Township's existing roads was voluntary. Landowner filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied. Snyder v. Zoning Hearing Board of Lower Paxton Township and Triple Crown Corporation, 980 A.2d 611 (Pa. 2009).
In March 2009, Landowner petitioned for a judgment of non pros with respect to Ulsh's appeal of the Zoning Board's deemed approval of the variance. On January 27, 2010, the trial court, by the same judge who decided Snyder's appeal, conducted an evidentiary hearing on the non pros petition. Both parties presented testimony. Ulsh's counsel, who had represented both Andrew Snyder and Harry Ulsh in their respective appeals, testified that the legal team concluded that Snyder's appeal would dispose of the Ulsh case and, thus, saw no point to pursue Ulsh's appeal simultaneously.
The trial court denied Landowner's non pros petition, concluding that the pursuit of Snyder's appeal provided a compelling reason for the 16 months of inactivity on the Ulsh appeal. The trial court also concluded that because the variance issues in the Snyder and Ulsh appeals were the same, this Court's ruling in Snyder controlled the outcome in Ulsh. Accordingly, the trial court set aside the deemed approval of Landowner's variance.
Landowner appealed, and this Court issued a decision affirming in part and vacating in part. Ulsh v. Zoning Hearing Board of Lower Paxton Township and Triple Crown Corporation, 22 A.3d 244 (Pa. Cmwlth. 2011) (Ulsh I). This Court affirmed the denial of the non pros petition. It also observed that because the issue was identical in both appeals, "the trial court did not err by concluding that Ulsh's land use appeal is controlled by Snyder." Ulsh I, 22 A.3d at 250. The Court further found that Ulsh's objection to the variance was the same as Snyder's, i.e., that Landowner did not show unnecessary hardship. Id. at 249, 250. Thus, this Court concluded that Landowner was "collaterally estopped from relitigating the issue of whether [Landowner] proved that the subject ordinance inflicted an unnecessary hardship with respect to the proposed development." Id. at 250.
Notwithstanding these conclusions, the Court vacated the trial court's decision to set aside the deemed approved variance. It concluded that the trial court erred in ruling on the merits without having made findings of fact and conclusions of law. Specifically, this Court held:
It is clear that the trial court did not make specific findings of fact as to the merits of the specific application underlying Ulsh's appeal. Therefore, the trial court denied [Landowner's] due process rights and/or erred as a matter of law by failing to make substantive findings of fact, specifically as to Ulsh's appeal. With respect to the argument that the trial court is required to conduct a de novo hearing, however, we hold that the question of whether to schedule a hearing or to proceed on the record made before the [Zoning Board] is a matter to be left at the trial court's discretion.Ulsh I, 22 A.3d at 252 (emphasis added). In a footnote, we stated:
Since Snyder and this appeal address the same variance, it stands to reason that [Landowner's] defense of Ulsh's appeal on
the merits would be the same as that posed before the trial court and this Court relative to Snyder. [Landowner] is collaterally estopped from litigating the same defense. However, since [Landowner] was entitled to a hearing on the merits of the deemed approval, it must have the opportunity to again make its case for entitlement to the variance at issue, separate and apart from the prior litigated defense of unnecessary hardship.Ulsh I, 22 A.3d at 252-53 n.9 (emphasis added). Consistent with these findings, we "remanded for proceedings consistent with this Court's Opinion." Id. at 253.
Following the remand, Landowner filed a motion with the trial court requesting pre-hearing discovery and an evidentiary hearing. Landowner alleged that it had discovered that one of the attorneys in the case had asked Harry Ulsh to appeal the deemed approval. This attorney lived near the proposed development but could not himself appeal because he had not attended either of the hearings before the Zoning Board. Landowner argued that this attorney was the "true party in interest" and enlisted Harry Ulsh to serve as a straw litigant in the appeal. Landowner's Brief at 18. Landowner argued that this evidence was important because it pertained to standing, but the trial court denied Landowner's motion. Landowner appealed the denial of its motion, and this Court granted Ulsh's motion to quash Landowner's appeal as involving an interlocutory order. Accordingly, the trial court proceeded on the evidentiary record made before the Zoning Board on April 27, 2006.
On December 31, 2012, the trial court, on remand, denied Landowner's variance request. At the April 27, 2006, hearing before the Zoning Board, Landowner offered the following evidence in support of its claim of hardship: (1) the property has wetlands and steep slopes and (2) Landowner had to pay for off-site infrastructure improvements. The trial court noted that this evidence was considered in Snyder and held not to constitute a hardship. Further, given the holding in Ulsh I, this issue cannot be relitigated. The trial court found that there was no alternate basis for the grant of a variance and, therefore, the "ruling in Ulsh shall be the same as that in the Snyder appeal, on the identical variance." Trial Court Decision at 8.
Nevertheless, to comply with this Court's remand instructions, the trial court also made findings of fact based on the record made before the Zoning Board. Specifically, the trial court reviewed the hardship posed by the land's topography and the financial hardship, and concluded that these were not sufficient to justify the grant of a variance. The trial court found that Landowner offered only conclusory statements, not probative evidence, on the elements of hardship set forth in Section 910.2(a) of the MPC, 53 P.S. §10910.2(a). Accordingly, it denied Landowner's variance application.
Section 910.2 was added by the Act of December 21, 1988, P.L. 1329. Section 910.2(a) states as follows:
(a) The board shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. The board may by rule prescribe the form of application and may require preliminary application to the zoning officer. The board may grant a variance, provided that all of the following findings are made where relevant in a given case:
53 P.S. §10910.2(a).(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(3) That such unnecessary hardship has not been created by the appellant.
(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
Ulsh had argued on appeal that Landowner waived any right to a deemed approval by proceeding with its second variance application. Ulsh contends that this issue is now moot because of the trial court's finding that Landowner is not substantively entitled to a variance based on the factual record made before the Zoning Board.
On January 22, 2013, Landowner appealed. On April 4, 2013, Harry Ulsh died. Counsel for Harry Ulsh filed a motion to substitute June Ulsh for her late husband as the appellee in this matter. June Ulsh is Harry Ulsh's personal representative and succeeded to ownership of the property they owned as tenants by the entireties. Landowner filed a motion to dismiss the underlying land use appeal filed by Harry Ulsh for want of a party.
On June 13, 2013, this Court issued a single judge order (by Oler, S.J.) granting the motion to substitute June Ulsh and denying Landowner's motion to dismiss. Landowner filed an application for reconsideration requesting that a panel review the single judge order. The same single judge denied the application for reconsideration. Landowner's appeal is now before this Court for review.
When the trial court reviews a land use case de novo, this Court reviews the trial court's findings of fact and legal conclusions for an error of law or abuse of discretion. LHT Associates, LLC v. Township of Hampton, 809 A.2d 1072, 1075 n.1 (Pa. Cmwlth. 2002).
Issues
On appeal, Landowner raises three issues for our consideration. First, Landowner argues that the trial court violated Landowner's right to due process and abused its discretion by declining to receive additional evidence following this Court's remand in Ulsh I. Second, Landowner asserts that the trial court erred in concluding that the deemed approved variance at issue in the Ulsh appeal was "identical" to the variance application at issue in the Snyder case, when the trial court was required to make findings of fact on Landowner's deemed approved variance. Third, Landowner contends that the substituted appellee, June Ulsh, lacks standing to proceed with the land use appeal initiated by her late husband. We address these issues seriatim.
Landowner asks that this Court reverse the trial court's order and remand for the trial court: 1) to dismiss the underlying land use appeal for want of a necessary party; or, in the alternative, 2) to conduct a hearing de novo on the merits of the first variance application and allow Landowner to make its case for entitlement to the variance.
Landowner's Due Process Claim
Landowner contends that the trial court violated its due process rights by not taking additional evidence upon this Court's remand of Ulsh I. Landowner acknowledges, as it must, that this Court's remand directed that "the question of whether to schedule a hearing or to proceed on the record made before the [Zoning Board] is a matter to be left at the trial court's discretion." Ulsh I, 22 A.3d at 252. Nevertheless, Landowner contends that the trial court abused its discretion in not taking evidence. In support, Landowner emphasizes a footnote in Ulsh I, which stated that
since [Landowner] was entitled to a hearing on the merits of the deemed approval, it must have the opportunity to again make its case for entitlement to the variance at issue, separate and apart from the prior litigated defense of unnecessary hardship.Ulsh I, 22 A.3d at 252-53 n.9. Landowner construes this sentence to mean that Landowner could demand an evidentiary hearing.
Objector Ulsh rejoins that the trial court did not need additional evidence to decide this land use appeal. Ulsh I specifically left that question to the trial court. Footnote 9 simply emphasized that Landowner was entitled to two separate and complete court rulings, one in Snyder and another in Ulsh, each with its own findings of fact and conclusions of law. We agree.
The Zoning Board has opted not to file a brief.
In a deemed approval of a zoning application, the findings of the zoning board are a nullity. DeSantis v. Zoning Hearing Board of the City of Aliquippa, 53 A.3d 959, 962 (Pa. Cmwlth. 2012). Accordingly, on appeal the trial court must render its own findings and conclusions on the merits. Gryshuk v. Kolb, 685 A.2d 629, 634 (Pa. Cmwlth. 1996). In Southland Corporation v. Zoning Hearing Board of Warrington Township, 36 Pa. D&C.3d 59 (1985), the trial court pondered its role in the appeal of a deemed approval and concluded:
We believe that we may either review the record made before the zoning hearing board or fix a hearing, and either supplement the record or establish an entirely new one. However, we are satisfied that a full and complete record was made before the zoning hearing board. Therefore, we believe that in this posture, our scope of review is an independent one of the record made before the zoning hearing board and a decision by this court on the merits of the application.Id. at 64. This is precisely the rationale employed by this Court in Ulsh I. We stated that "the question of whether to schedule a hearing or to proceed on the record made before the [Zoning Board] is a matter to be left at the trial court's discretion." Ulsh I, 22 A.3d at 252.
Landowner also cites Gibraltar Rock, Inc. v. New Hanover Township Zoning Hearing Board, 68 A.3d 1012 (Pa. Cmwlth. 2013), for the proposition that the trial court must conduct an evidentiary hearing where the deemed approval is appealed. In Gibraltar Rock, we noted that "[i]n the event of an appeal [of a deemed approval], a trial court must hear the matter de novo and render its own findings of fact and conclusions of law." Gibraltar Rock, 68 A.3d at 1020. We did not hold that a trial court must always hold a new evidentiary hearing, only that the trial court must conduct a de novo review. In short, Gibraltar Rock does not compel a different outcome.
The matter in Gibraltar Rock was remanded to the trial court for a hearing on a procedural challenge to a zoning ordinance because the zoning board had taken no evidence on the issue. Further, the Judicial Code required that the trial court, not the zoning board, had jurisdiction over such procedural challenges. Id. at 1017.
Ulsh I specifically addressed Landowner's argument that due process entitled it to a new evidentiary hearing and held that this was a matter entrusted to the trial court's discretion. The Court held that Landowner was entitled to a trial court decision with findings of fact and conclusions of law, as pointed out in footnote 9. Landowner reads footnote 9 as supplanting the directive that the trial court was to decide whether a new evidentiary hearing was needed. We disagree and reject this contention.
Landowner cites two cases wherein this Court stated that any irregularities or due process violations that had occurred below were cured when the trial court held a de novo hearing. See Robertson v. Henry Clay Township Zoning Hearing Board, 911 A.2d 207 (Pa. Cmwlth. 2006); K. Hovnanian Pennsylvania Acquisitions, LLC v. Newton Township Board of Supervisors, 954 A.2d 718 (Pa. Cmwlth. 2008). However, these cases did not hold that the trial court must hold a de novo hearing. Further, these cases are inapplicable because Landowner does not claim that there were any irregularities or due process violations at the zoning board level.
Landowner next argues that Section 1005-A of the MPC, 53 P.S. §11005-A, required the trial court to receive additional evidence. Section 1005-A of the MPC provides for presentation of additional evidence in land use appeals. It states, in relevant part, as follows:
Section 1005-A was added by the Act of December 21, 1988, P.L. 1329.
If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence, provided that appeals brought before the court pursuant to section 916.1 shall not be remanded for further hearings before any body, agency or officer of the municipality.53 P.S. §11005-A (emphasis added). Whether to allow additional evidence is a matter committed to the discretion of the trial court. McGrath Construction, Inc. v. Upper Saucon Township Board of Supervisors, 952 A.2d 718, 729 (Pa. Cmwlth. 2008). However, the trial court must take additional evidence: (1) where the record is incomplete because a party was denied an opportunity to be heard fully by the zoning board; or (2) where relevant testimony was offered and excluded. Eastern Consolidation and Distribution Services, Inc. v. Board of Commissioners of Hampden Township, 701 A.2d 621, 624 (Pa. Cmwlth. 1997). Neither scenario is present here.
Landowner points out that the record on the deemed approval of Landowner's variance was made at the April 27, 2006, hearing before the Zoning Board, and this record was not filed with the trial court until after this Court's remand order. However, the timing of the record's filing with the trial court is not relevant. Had the record of the April 27, 2006, hearing been lost and never filed with the trial court, it may have been required to develop an entirely new evidentiary record to comply with the remand. However, the April 27, 2006, hearing record was not lost, but, rather, available to the trial court by the time it did its remand.
The additional evidence Landowner seeks to present was that Harry Ulsh lacked standing as a "straw" litigant. For new evidence to be required, that evidence must be "relevant." Eastern Consolidation, 701 A.2d at 624. Harry Ulsh lived near Landowner's proposed development and testified before the Zoning Board in opposition to the variance. His standing to appeal the deemed approval is unquestioned. Thompson v. Zoning Hearing Board of Horsham Township, 963 A.2d 622, 624-25 (Pa. Cmwlth. 2009). Simply because a third party urges an objector to appeal and agrees to assume responsibility for the litigation costs does not alter the objector's standing. The evidence Landowner sought to present was not material.
In sum, the trial court was not required under Section 1005-A to hold a hearing. The record is not incomplete; Landowner had an opportunity to be heard fully and was not denied an opportunity to present relevant evidence.
Variance Request in Snyder and Ulsh
Landowner's next issue focuses on the following portion of the trial court's decision:
[Landowner] is not entitled to the requested variance. There is no separate or new evidence, nor is there any alternate basis for the grant of the variance in [the] instant case. All of the evidence that [Landowner] submitted in support thereof has been considered and ruled on in the Snyder decision. The ruling in Ulsh shall be the same as that in the Snyder appeal, on the identical variance.Trial Court Decision at 8. Landowner argues that the trial court erred in concluding that the variance application in Ulsh was "identical" to the variance at issue in Snyder. Further, the trial court made generalized findings instead of pointing to specific record evidence. Most egregiously, the trial court failed to make specific findings on the five required criteria for granting a variance found in Section 910.2(a) of the MPC. See footnote 8, supra.
Landowner also points out that the trial court did not discuss Harry Ulsh's testimony, where he expressed concern about existing roads but testified that he was not challenging the density of the proposed development. Landowner suggests that if the trial court had done so, it would have concluded that Harry Ulsh was not adversely affected by the deemed approval and, therefore, was not an aggrieved party with standing to bring an appeal. It was not necessary for the trial court to discuss Harry Ulsh's testimony because Landowner waived any challenge to Harry Ulsh's standing by failing to object at the Zoning Board hearing. Scott v. City of Philadelphia, Zoning Board of Adjustment, 88 A.3d 1071, 1079 (Pa. Cmwlth. 2014).
Landowner also argues that the trial court failed to recognize that the Snyder and Ulsh appeals involve two separate challenges, i.e., Ulsh involves a challenge to a deemed approval and Snyder involved a challenge to the Zoning Board's timely written approval. However, the fact that the first variance application received a deemed approval while the second variance application received a timely written approval does not negate the fact that both variances are substantively identical.
Objector Ulsh responds that the trial court's above discussion simply reiterated this Court's ruling in Ulsh I that the variance in each appeal was substantively identical and that Snyder controlled on the issues it decided. The trial court made its own findings of fact and concluded, as in Snyder, that Landowner could not meet the hardship element here. We agree.
In Ulsh I, this Court specifically stated that the variance applications in the two appeals were substantively "identical" and that "Snyder and this appeal address the same variance." Ulsh I, 22 A.3d at 250, 253 n.9 (emphasis added). At the April 27, 2006, Zoning Board hearing, Mark DiSanto amended the first variance request to construct 449 residential units and agreed to fund $1.8 million in road improvements for the Township. The variance approved by the Zoning Board in Snyder was, likewise, for 449 residential units with $1.8 million in road improvements. When the parties settled Landowner's mandamus action, they agreed that Landowner would receive a deemed approval of the March 31, 2006, variance application to construct "449 units, pursuant to all conditions agreed to by [Landowner] and imposed by [the Zoning Board] in the hearing of July 27, 2006." R.R. 25a. The trial court simply, and correctly, applied this Court's statement in Ulsh I that "Ulsh's land use appeal is controlled by Snyder to the extent that the parties seek to relitigate issues that are already resolved." Ulsh I, 22 A.3d at 250.
Contrary to Landowner's assertion, the trial court did discuss the record on the deemed approved variance and did make findings of fact relevant to the merits of the variance. The trial court specifically noted that Landowner claimed a hardship caused by the parcel's topography and the requirement that Landowner pay $1.8 million for road improvements. In Snyder, this Court ruled that these circumstances did not constitute a hardship; in Ulsh I, this Court ruled that the issue could not be relitigated. Landowner has not identified any other basis for finding a hardship in the April 27, 2006, hearing record. Landowner was entitled to separate findings on the challenge to its deemed approved variance, which it has now received from the trial court upon remand. Because the evidence of hardship was not sufficient to justify a variance, the trial court did not err in denying the first variance request.
Standing of June Ulsh
Finally, Landowner argues that June Ulsh lacked the requisite standing to participate in the underlying land use appeal because she never intervened in her husband's appeal as required by the MPC. Accordingly, the appeal of her late husband must be quashed. Landowner acknowledges that the Court has already ruled on this issue, but contends that it was made by a single judge and should be reviewed by the panel. June Ulsh responds that this Court's prior ruling is controlling as the law of the case. We agree.
Section 291 of Commonwealth Court's Internal Operating Procedures states:
Where a party files a petition for reargument of an order issued by a single judge, the prothonotary shall submit the petition, together with any answer, to that judge for disposition.210 Pa. Code §69.291. If the single judge who issued an order denies an application for reconsideration by a panel under Section 291, the single judge's order is binding and the issues decided therein cannot later be reviewed by the merits panel. Tri-County Landfill, Inc. v. Pine Township Zoning Hearing Board, 83 A.3d 488, 508 (Pa. Cmwlth. 2014). That is precisely what occurred in this case. The Court has ruled that June Ulsh had standing to be substituted for her late husband, Harry Ulsh, as appellee in this matter. This Court will not review the merits of that order.
Notably, Landowner was unsuccessful before the trial court and is the party that brought the instant appeal. We fail to see how Landowner could obtain through the subsequent death of the original objector that which it cannot otherwise legally obtain. --------
Conclusion
For all of the foregoing reasons, we affirm the order of the trial court denying Landowner's variance application, which was deemed approved when the Zoning Board did not issue a timely written decision.
/s/_________
MARY HANNAH LEAVITT, Judge Judge Cohn Jubelirer did not participate in the decision in this case.
ORDER
AND NOW, this 8th day of July, 2014, the order of the Court of Common Pleas of Dauphin County filed December 31, 2012, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
Snyder, slip op. at 3.