Weston v. Zoning Hearing Bd. of Bethlehem Twp., 994 A.2d 1185 (Pa. Cmwlth. 2010)August 2010 – Newsletters In the Zone
This case involved a landowner who rented rooms in her home to college students. The zoning officer considered this use to be a "boarding home," which is not permitted in the zoning district. The landowner filed an application with the Zoning Hearing Board (ZHB) for an interpretation. The ZHB issued public notice of its intent to hold a hearing on the landowner's application, pursuant to Section 908(1) of the Pennsylvania Municipalities Planning Code (MPC). In addition, the zoning ordinance required that written notice of the hearing be mailed to property owners within 400 feet of the subject property.
At the hearing, the zoning officer testified that the advertisement of the public notice included a typographical error that identified the landowner's address as 3214, rather than 3215. The landowner's attorney confirmed that individual notice was sent by U.S. mail to property owners within the requisite area and no envelopes were returned as undeliverable. The ZHB determined that the notice requirements were met and proceeded with the hearing. The ZHB issued a written decision in favor of the landowner. Appellants filed an appeal to the ZHB's decision raising both procedural and substantive errors, asserting (1) they did not receive written notice of the ZHB hearing in accordance with the zoning ordinance, (2) there was no record evidence to show the ZHB complied with the public notice requirements in Sections 107 and 908(1) of the MPC, and (3) the notice was defective on its face because it contained a numerical error.
In response to the appellants' appeal, the ZHB alleged the appellants lacked standing to bring the appeal since they were not parties before the ZHB. The appellants argued they had standing pursuant to Section 1002.1-A of the MPC, which applies "to all appeals challenging the validity of a land use decision on the basis of a defect in procedures prescribed by statute or ordinance." 53 P.S. § 11002.1(A). Therefore, the appellants alleged their absence at the ZHB hearing was due to the township's failure to strictly comply with the proper procedure regarding notice under the MPC and zoning ordinance, the hearing was procedurally defective and the ZHB's decision was void ab initio. The trial court dismissed the appellants' appeal and determined the mailing list was in the record and the list included the appellants and contained no facial defects to support the appellants' claim they did not receive the notice. In addition, the trial court noted that, although the public notice was defective with respect to the landowner's address, it was otherwise proper.
On appeal, the Commonwealth Court affirmed the trial court's decision, noting the appellants have the burden of providing a failure to strictly comply with the notice procedure. The Commonwealth Court first rejected the appellants' argument that the submitted documents must be excluded from the record because they were not formally moved into evidence. The court noted the formal rules of evidence do not apply to ZHB hearings and the documents were marked as exhibits. Second, the court applied the "mailbox rule" in determining there was a presumption the mailed notice was received by the appellants. Lastly, the court rejected the appellants' argument that the notice did not strictly comply with the requirements set forth in the MPC since the landowner's address was incorrect. The court relied on Section 107 of the MPC, which provides public notice "shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing." 53 P.S. § 10107.
In addition, the court noted that neither the MPC nor the zoning ordinance require the property address be included in the notice. The court determined the public notice did comply with the requirements of the MPC and the typographical error was de minimis. Therefore, the appellants failed to meet their burden under Section 1002.1-A of the MPC.
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