Key Points:

• Procedural misstep: Because a developer’s request didn’t stem from an appeal of a zoning officer’s determination or permit denial, the ZHB lacked jurisdiction to decide what qualified as an existing “nonconforming use.”
• No advisory opinions: The zoning board’s decision was invalid because it offered an interpretation without a concrete appeal or application to review
• Lesson for developers: Only zoning officers have authority to render advisory opinions or zoning determinations, where a zoning hearing board possesses jurisdiction to hear zoning appeals.

A developer’s plan to transform a former monastery into a 77-unit apartment complex has been put on hold — not because of the concept, but because of a flawed zoning approval process.

In DiDonato v. Ross Township Zoning Hearing Board, the Commonwealth Court of Pennsylvania upheld a lower court’s finding that the township zoning hearing board lacked jurisdiction to act on the developer’s request. The case serves as a reminder that in land use, procedure is more than paperwork.

From Monastery to Multifamily — Almost

The property in Ross Township, north of Pittsburgh, covers about 10.8 acres and includes several existing structures: the monastery itself, a former school, and three houses. Trinity Commercial Development, the project sponsor, hoped to repurpose those buildings as apartments and townhomes.

In 2022, Trinity approached the township’s zoning officer, who advised that multifamily housing was not allowed in the R-2 Residential District within which the property was located. Trinity applied for a use variance and was denied.

The company then filed a new application, this time asking the zoning hearing board for a "determination" the monastery should be treated under the ordinance as a "nonconforming use" eligible for continuation. The board agreed and approved the project, but nearby residents appealed, arguing the board had no authority to issue what amounted to an advisory opinion. Both the trial court and the Commonwealth Court agreed.

Why the Courts Hit Pause

Judge Matthew Wolf, writing for the panel, emphasized that zoning hearing boards operate only within the limits of the Municipalities Planning Code (MPC). Boards may hear appeals from zoning officers, decide variances or special exceptions, or address direct challenges to an ordinance.

Trinity’s filing fit none of those categories. It was simply a request for an interpretation, with no underlying permit application or denial to anchor an appeal. The court viewed that as an advisory opinion, something the board had no authority to issue, which authority lies with the zoning officer.

Even if a verbal denial had occurred, the court noted, it would not have cured the problem. The developer needed a formal permit or registration decision from the zoning officer before the board could step in.

For more information, please contact Daniel Lyons at 215.918.3693 or daniellyons@foxrothschild.com or any member of Fox Rothschild’s Real Estate Department.

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