A zoning applicant who wins before the board may still lose months or years later if an objector never received a proper written decision.

In its 24-page opinion in Kelly v. Haverford Township Zoning Hearing Board, the Commonwealth Court held that an objector’s appeal — filed nearly four months after the board’s vote — was timely because the board never issued a written decision with findings of fact and conclusions of law, and because the objector, as a party to the proceeding, never received a copy of any such decision.

The ruling is a cautionary tale for any applicant, developer or land use practitioner who assumes a favorable zoning board vote is the finish line. It is not. Unless the board issues a conforming written decision and serves all parties, the appeal clock never starts.

Background

The underlying dispute was modest: Michael Kelly (“Objector”) appealed an order of the Court of Common Pleas of Delaware County that denied his land use appeal of a variance granted by the Haverford Township Zoning Hearing Board (the “ZHB”) to allow Union United Methodist Church (“Landowner”) to install amber colored LED lights in its church sign in lieu of white lights as required by the Haverford Township Zoning Ordinance.

The Commonwealth Court (the “Court”) affirmed the trial court’s holding on the merits but reversed its determination that Objector’s appeal was untimely filed. That reversal — and the reasoning behind it — is the focus of this alert and the key takeaway for practitioners.

Critically, Objector never formally requested “party status” at the underlying ZHB hearing. He did, however, (i) provide his name and address; (ii) get sworn in; (iii) provide testimony; and (iv) introduce exhibits. That was enough. The Court found that he was a party to the hearing before the ZHB — a determination that entitled him to written notice of the decision.

On March 6, 2020, the Township zoning officer notified the Landowner in writing that the variance had been granted. However, the ZHB did not issue a final written decision with findings of fact and conclusions of law.

On April 1, 2020, Objector emailed the zoning officer about the ZHB’s decision, requested a copy of the order, and requested information about an appeal. The zoning officer advised Objector that he had 30 days from the date of the decision to appeal (April 6, 2020). Objector responded with two requests for a copy of the ZHB’s written decision, but the zoning officer never sent Objector a copy, presumably because the ZHB never issued a formal written decision.

Objector filed an appeal of the ZHB’s decision on June 30, 2020 — nearly four months after the board’s vote. The Landowner argued that the appeal was untimely, and the trial court agreed. However, on appeal, the Commonwealth Court reversed and held that the appeal was timely because (i) Objector was a party to the underlying ZHB hearing and never received a copy of the ZHB’s written decision, and (ii) Objector’s appeal was in fact premature, as the ZHB had failed to issue a proper written decision with findings of fact and conclusions of law.

It was not until October 24, 2023 — more than three years later, and only at the direction of the trial court — that the ZHB finally issued its written decision. Objector filed a timely supplemental appeal on November 13, 2023.

Premature, Not Untimely

The Commonwealth Court cited Section 908(10) in support of its decision, which includes:

A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to him not later than the day following its date. To all other persons who have filed their name and address with the board not later than the last day of the hearing, the board shall provide by mail or otherwise, brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.

Furthermore, the Commonwealth Court stated, “[t]he Zoning Board publicly announced its decision on March 5, 2020, but ‘zoning decisions are not final until a written decision is issued’. A written decision must have findings of fact and conclusions of law where there is a contest.”

Since Objector filed his appeal on June 30, 2020, the appeal was filed in advance of the ZHB’s written decision and was therefore premature — not untimely. The Court continued, “…any jurisdictional defect was cured by [Objector]’s timely supplement to his appeal that was filed after the Zoning Board issued its written decision.” The appeal was timely.

Takeaways

Applicants, developers, and their counsel should take note. In Kelly, the Court determined that Objector was a party to the hearing even though he never specifically requested party status — because he provided his name and address, was sworn in, testified, and introduced exhibits.

The practical takeaways are twofold. First, applicants should ensure that all objectors at a zoning hearing, regardless of formal party status, receive a copy of the board’s written decision. Second, applicants should confirm that the zoning hearing board actually issues a formal written decision — one that includes findings of fact and conclusions of law — whenever an application was contested. Failure on either count means the appeal clock may never start running, leaving an approved project exposed to challenge indefinitely.

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.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the author(s) and not necessarily this law firm or its clients. Prior results do not guarantee a similar outcome.