Loading...
HomeMy WebLinkAbout2007-729 Civil JOSEPH F. FAY, JR. AND : IN THE COURT OF COMMON PLEAS OF PAULA L. FAY, : CUMBERLAND COUNTY, PENNSYLVANIA PETITIONERS : : V. : : SOUTH MIDDLETON TOWNSHIP, : ROBERT J. GRIFFIN AND : ELIZABETH GRIFFIN, : RESPONDENTS : 07-729 CIVIL TERM IN RE: PETITION TO APPEAL NUNC PRO TUNC BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., May 7, 2007:-- Petitioners, Joseph F. Fay, Jr. and Paula L. Fay, live at 327 West First Street, Boiling Springs, South Middleton Township, Cumberland County. Respondents, Robert J. Griffin and Elizabeth Griffin live at 323 West First Street, Boiling Springs, March 2, 1999 Cumberland County. On , the Griffins, who lived in a single family residence on their property, filed a Conditional Use Application with South Middleton Township to use a detached garage as a daycare center. Their property was in R-M Residential-Moderate Density Zoning District that allowed daycare centers as a April 29, conditional use. A hearing was conducted before the Board of Supervisors on 1999 . In a decision, the Board, after noting that, “The applicant intends to use the existing detached garage as a daycare facility for no more than fifteen (15) per- kindergarten age children,” approved the conditional use subject to several conditions. 07-729 CIVIL TERM June 27, 2006 On , the Zoning Officer of South Middleton Township issued a Zoning Permit to Robert Griffin for 323 West First Street. The proposed use was to Erect a structure – Accessary [sic] Building “.” The Permit set forth: “Accessary [sic] Use of structure for any purpose related to structure for PERSONAL USE ONLY. day care [sic] facility is prohibited without proper township approvals. ” (Emphasis added.) The Permit further provided: Issuance of this permit does not constitute approval to occupy or use said structure or property. Occupancy shall not be permitted until a Certificate of Use/Occupancy has been issued certifying compliance of said structure or use with the applicable regulations of the Zoning Officer. August, 2006 In , the Griffins filed another application with South Middleton Township seeking a modification of their conditional use to expand the daycare use beyond the detached garage and into the new building and expansion they constructed on their property under the Zoning Permit. The South Middleton Township Zoning Ordinance as amended in 1999, allows “Commercial Daycare Centers” as a conditional use in an R-M District. A Commercial Daycare Center is one that exceeds six non- residents, and it cannot be an accessory use to a dwelling unit on the property. The Ordinance provides that, “Any use for which a Conditional Use Permit may be granted shall be deemed to be a conforming use in the District in which such use is located provided that such permit shall be deemed to affect only the lot or portion thereof for which such permit shall have been granted.” A hearing was scheduled before the -2- 07-729 CIVIL TERM October 26, 2006 Board of Supervisors of South Middleton Township on . The Griffins appeared with their counsel, Charles Suhr, and the Fays appeared with their counsel, Hubert Gilroy. The minutes of the meeting of the Board for which Richard Mislitsky was the solicitor, include: ROBERT & ELIZABETH GRIFFIN – Conditional Use Public Hearing: Mr. Mislitsky convened the hearing. Mr. Mislitsky asked if both parties are Attorney Charles Shur [sic] represents represented by council [sic]. the Griffins& Attorney Hubert Gilroy represents the Fays.Mr. Mislitsky asked Mr. Shur [sic] if he is of the opinion that this matter does not have to be before the Board. Mr. Shur [sic] replied yes. Mr. Mislitsky addressed Mr. Gilroy & asked him if he believes that this matter should be before the Zoning Hearing Board. Mr. Gilroy replied that is Mr. Mislitsky stated that this Board is in concurrence but for correct. different reasons that this matter is not properly before this body. a motion, because the Board does not feel that Ron [Reeder] made this issue is properly before the Board of Supervisors, to return all funds received in this application process & to conclude this hearing before it begins. Mr. Mislitsky said that this is on the basis that all parties & the Board agree that this matter should not be before this Board. Tom [Faley] seconded, & the vote in favor was unanimous. (Emphasis 1 added.) December 5, 2006 On , Mislitsky wrote to Suhr to “confirm our conversation of December 5, 2006,” stating: [I] have considered this a matter which is properly before the Zoning Hearing Board. If for no other reason, and there are other reasons, the Zoning Permit Township issued a that set forth certain restrictions. As Moreover, the the name of permit itself indicates, this is a zoning matter. Township Zoning Officer has made a determination. In my opinion, this is a matter that has always been properly before the Zoning Hearing the governing Board. . . . this is a matter for the Zoning Hearing Board, body has no jurisdiction . (Emphasis added.) __________ 1 No application fee was ever paid so no fee was ever returned. -3- 07-729 CIVIL TERM December 12, 2006 On , Suhr wrote to South Middleton Township that: No written decision meeting the criterion set forth in MPC §913.2 was issued and delivered to the Griffins within 45 days of the October 26, 2006 hearing (i.e., on or before December 11, 2006). As such, the Griffins’ Conditional Use Application is deemed approved by the Board of Supervisors. -4- 07-729 CIVIL TERM Suhr requested that the Board provide public notice of the deemed approval on or before December 22, 2006, and “If the Board of Supervisors declines to provide such notice, notice will be provided by the Applicant . . . .” The letter did not copy Hubert December 14, 2006 Gilroy. On , Mislitsky wrote to Suhr: This is in response to your recent letter pertaining to a “deemed approval”. Your letter was brought to the attention of the Board of Supervisors at their regularly scheduled meeting on December 14, 2006. The Board decided, by unanimous vote, that a written decision was not necessary. Accordingly, South Middleton Township will not publish notice that a “deemed approval” has occurred. Please advise the Township as to how you intend to proceed. Also, I note that you are not copying opposing counsel on your correspondence. I think it is appropriate that you do so. (Emphasis added.) Without prior notice to Mislitsky or Gilroy, the Griffins published notice of a December 21,December deemed approval in the Carlisle Sentinel on and again on 28, 2006 . The notice stated: The basis for the deemed approval of the Application is the failure of the Board of Supervisors of South Middleton Township to communicate in writing the decision of said Board, accompanied by findings of fact or conclusions based thereon, together with any reasons therefore, within 45 days of the last hearing and action taken by said Board on October 26, 2006. December 22, 2006 On , Gilroy sent an email to Suhr, stating: “Will you give me notice if you take any action on the deemed approval issue.” Despite having published nd the first notice of the deemed approval the day before, Suhr responded on the 22 by email: “I’m hoping not to have to go to court with a mandamus action, but that will depend on what the township does. I will let you know if I file any such mandamus -5- 07-729 CIVIL TERM action.” Suhr did not advise either Gilroy or Mislitsky that he published the notices. Neither Gilroy or Mislitsky saw the published notices, in fact Mislitsky wrote to Suhr on January 3, 2007 : “Will you kindly advise me as to how you intend to proceed with your February 6, 2007 claim that a ‘deemed approval’ has occurred.” On , Suhr told Gilroy about the publication of the deemed approval on December 21 and 28, 2006. On February 7, 2007 , the Fays filed the within petition to appeal nunc pro tunc from the deemed approval. They maintain that the “undefendable actions of the Griffins’ counsel in deliberately trying to confuse, and arguably deceive, [their] counsel and the Township Solicitor with respect to the Deemed Approval Notice is sufficient cause to March 21, grant the Petition for Appeal Nunc Pro Tunc.” A hearing was conducted on 2007 . Counsel subsequently filed briefs and the matter is ready for decision. DISCUSSION We must first determine whether there was a legal deemed approval of the Griffins’ application for a conditional use before determining whether the Fays may file an appeal from the purported deemed approval nunc pro tunc. The Municipalities Planning Code (MPC), at 53 P.S. Section 10913.2(b)(1), provides: The governing body shall render a written decision or, when no decision is called for, make written findings on the conditional use application within 45 days after the last hearing before the governing body. Where the application is contested or denied, each decision shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefore. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. -6- 07-729 CIVIL TERM (Emphasis added.) Subsection (b)(2), provides: Where the governing body fails to render the decision within the period requiredby this subsection or fails to commence, conduct or complete the required hearing as provided in section 908(1.2),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 . When a decision has been rendered in favor of the applicant because of the failure of the governing body to meet or render a decision as hereinabove provided, the governing body shall give public notice of the decision within ten days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of this act. If the governing body shall fail to provide such notice, the applicant may do so. (Emphasis added.) At the scheduled hearing on the application for a conditional use on October 26, 2006, the solicitor for the Township asked counsel for the Griffins, “if he is of the opinion that this matter does not have to before the Board.” Counsel replied, “Yes.” The Board was in concurrence because it did “not feel that this issue is properly before the Board of Supervisors.” Thus, the Board concluded the hearing before it began. This constituted a withdrawal of the conditional use application by counsel for the Griffins. There being no hearing, there was no need for the Board to render a decision or any other finding pursuant to Section 10913.2(b)(1) of the MPC. According, the purposed deemed decision pursuant to subsection (b)(2), is a nullity. Mullen v. Zoning Hearing Board of Collingdale Borough, In 691 A.2d 998 (Pa. Commw. 1997), Mullen applied for a variance. On July 19, 1995, the Zoning Hearing Board conducted a hearing. On August 9, 1995, the Board voted to deny the variance. On August 11, 1995, the Board’s solicitor sent Mullen’s counsel a letter with -7- 07-729 CIVIL TERM notification that the Board denied the application for the variance. Mullen filed an appeal in the Court of Common Pleas of Delaware County. The court decided that the variance was deemed approved under Section 10908(9) of the MPC, because the Board did not render a formal decision until more than forty-five days after June 19, 2 1995. The Court held that the letter from the Board’s solicitor was insufficient to meet the statutory requirement. The Commonwealth Court of Pennsylvania reversed, concluding that the letter written by the Board’s solicitor sufficiently complied with Section 10908(9) of the MPC, and holding that there was no deemed approval of the variance. The Court stated: In light of the authority we have examined, we glean the following propositions. Within forty-five days of the last hearing on an application before a zoning board, the board must make a decision on the matter and that decision must be communicated to the applicant in writing. Otherwise, assuming the applicant has not agreed to an extension of time, and even if the applicant was informed orally of a decision, there is a deemed approval due to untimeliness. It is not necessary that the decision be accompanied by the usual written appurtenances of an opinion. The decision need not contain signatures of the board’s members and may be communicated by an agent of the board in place of the members themselves. Here, within the forty-five day period there was a definitive written notice to the applicant’s counsel, signed by the Board’s solicitor, of the Board’s adverse decision. Under these circumstances, considering our discussion and the precedent cited, we hold that there was no deemed approval by the Board. We do not condone the Board’s failure to take simple steps and we do not minimize the importance of an expeditious written decision by the Board itself, but we conclude that the solicitor’s letter was sufficient to memorialize the decision made by the Board, __________ 2 Section 10908(9) of the MPC is applicable to zoning hearing boards. It tracks the same language in Section 10913.2(b)(1) & (2) which is applicable to a governing body. -8- 07-729 CIVIL TERM satisfy the timeliness requirement and notify the applicant so that he could take an appeal. sub judice, In the case the Board of Supervisors of South Middleton Township, at the scheduled hearing on the conditional use application on October 26, 2006 at which the Griffins and their counsel were present, passed “a motion, because the Board does not feel that the issue is properly before the Board of Supervisors . . . to conclude this hearing before it begins.” On December 5, 2006, the Board solicitor wrote to counsel for the Griffins that “[t]his is a matter that has always been properly before the Zoning Hearing Board. . . . This is a matter for the Zoning Hearing Board, 3 the governing body has no jurisdiction.” Although the solicitor testified that he did not feel notice was required, nevertheless, the letter constitutes adequate written notice per Mullen. Thus, for this reason, petitioner’s purported deemed approval of a conditional use is a nullity. Because petitioner’s purported deemed approval of a conditional use is a nullity, there is nothing to appeal from. Therefore, the following order is entered. ORDER OF COURT AND NOW, this day of May, 2007, the petition of Joseph F. Fay, Jr. __________ 3 The Zoning Hearing Officer denied a permit to the Griffins to use the accessory building they were allowed to erect for any purpose related to a daycare facility. The MPC at 53 P.S. Section 10909.1(a)(3) provides exclusive jurisdiction to zoning hearing boards to hear and render final adjudications from, “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 thereof, the issuance of any cease and desist order or the registration or refusal to register any non-conforming use, structure or lot.” -9- 07-729 CIVIL TERM and Paula L. Fay to file an appeal nunc pro tunc from a purported deemed approval of a IS DENIED. conditional use that is a nullity, -10- 07-729 CIVIL TERM By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Petitioners Charles M. Suhr, Esquire For Robert J. Griffin and Elizabeth Griffin Richard P. Mislitsky, Esquire For South Middleton Township :sal -11- JOSEPH F. FAY, JR. AND : IN THE COURT OF COMMON PLEAS OF PAULA L. FAY, : CUMBERLAND COUNTY, PENNSYLVANIA PETITIONERS : : V. : : SOUTH MIDDLETON TOWNSHIP, : ROBERT J. GRIFFIN AND : ELIZABETH GRIFFIN, : RESPONDENTS : 07-729 CIVIL TERM IN RE: PETITION TO APPEAL NUNC PRO TUNC BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this day of May, 2007, the petition of Joseph F. Fay, Jr. and Paula L. Fay to file an appeal nunc pro tunc from a purported deemed approval of a IS DENIED. conditional use that is a nullity, By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Petitioners Charles M. Suhr, Esquire For Robert J. Griffin and Elizabeth Griffin Richard P. Mislitsky, Esquire For South Middleton Township :sal