Monday, January 14, 2013

Deemed Approval Zoning Appeal

DeSantis v. Zoning Hearing Board of the City of Aliquippa, et. al, 2012 Pa. Commw. LEXIS 267 (2012)

Frank Kosir, Jr., Esquire
This matter addressed the issue of whether a trial court is required to conduct a de novo hearing when ruling on a zoning appeal arising from a deemed approval.  On July 22, 2010, the City of Aliquippa (“City”) filed an application with the Zoning Hearing Board of the City of Aliquippa (“Board”) seeking dimensional variances to construct a police substation on a parcel of property (“Property”) that it had leased from the Aliquippa School District.  The Board conducted a hearing on the application at which Antonietta and Marian DeSantis (“Landowners,”) owners of land adjacent to the Property, appeared in opposition to the application.  The Board failed to issue a timely decision, resulting in a deemed approval, and the Landowners appealed to the Beaver County Court of Common Pleas, which remanded the matter to the Board for the issuance of Findings of Fact and Conclusions of Law.  The Board issued the requested Findings of Fact and Conclusions of Law, concluding that the City was entitled to the requested variance and the trial court, concluding that its scope of review was limited to making a determination as to whether the Board had committed an error of law, or abused its discretion, affirmed the Board’s decision without holding a hearing, or taking any additional evidence.  The Landowners appealed, citing fourteen (14) points of error in the trial court’s determinations.
On appeal, our Commonwealth Court reversed.  In issuing its ruling, the court did not address any of the issues raised in the Landowners’ appeal.  Rather, the court concluded that, in ruling on an appeal from a deemed approval, it is improper for the trial court to rely upon the record or the determinations of the zoning board.  In such instances, the zoning board’s untimely decision is a mere nullity, and the trial court is required to conduct a hearing, afford the parties the opportunity to present additional evidence, and to make its own factual findings and legal conclusions.  As the trial court had failed to do so in this instance, the matter had to be remanded, and the trial court required to conduct such a hearing.

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