Mihal v. Zoning Board of Hazleton

Opinion by Judge McGinley, Ernest Mihal and Helen Mihal, his wife; Thomas Mihal and Mary Ann Mihal, his wife; David Sirkot and Dorothy Sirkot, his wife; Charles Brogan and Catherine Brogan, his wife; Lillian Smith, Vera Oberman and Joseph Gombeda (Appellants) appeal an order of the Court of Common Pleas of Luzerne County, granting the Motion of Joseph Lombargo (Appellee) dismissing their appeal from the decision of the Zoning Hearing Board (Board) of the City of Hazleton. We vacate the order of the trial court and remand. . Initially, after conducting a public hearing on July 24, 1986, the Board granted the requests of Appellee Lombargo for five variances which were necessary for the issuance of a Zoning Permit to permit the construction of a residential garage on a lot not abutting the Appellees residence. The Board. approved (1) a front yard, variance; (2) a side yard variance; (3) a rear yard variance; (4). a lot coverage variance; and (5) a variance to the Ordinance provision allowing a residential garage only upon a parcel of land where a dwelling exists. Appellants Ernest and Helen Mihal, and Thomas and [615] Mary Ann Mihal appeared as protestors and their attendance was noted of record.1 On August 14, 1986, at No. 117-86 of 1986 the Board approved the application as follows:2 Whereas, applicant effected his/her application at a duly advertised, public hearing of the Hazleton Zoning Hearing Board held July 24, 1986, at Hazleton City Hall, Church and Green Streets by appearing before the Board in person or through a representative, offering evidence and testimony and answering. the questions of the Board; and Whereas, no persons appeared before the Board of record to protest the granting of the application; and Whereas, the Board is not required under law to give findings of fact or conclusions of law when and if it grants approval to an , application not objected to of record; ... The decision was inaccurate and self-contradictory because there were protestors of record. Subsequently the Board mailed a second approval on October 5, 1986.3 The only difference between the decision mailed August 14, 1986, and the decision or second approval mailed on October 5, 1986, is the deletion of the following phrase from the second approval: “Whereas, no, persons appeared before the Board of record to protest the granting of the application . . .” The trial court recognized that there were two decisions issued but concluded that the appeal period commenced on August 14, 1986, and that the appeal filed [616] on October 16, 1986 was untimely. When no additional testimony is taken by the trial court, our scope of review is limited to a determination of whether the Board abused its discretion or committed an error of law. Feldman v. Zoning Hearing Board of the City of Pittsburgh, 89 Pa. Commonwealth Ct. 237, 492 A.2d 468 (1985). The record of the hearing before the Board is incomplete. There is a record notation by the court reporter that “no testimony was found on the cassette tape. Apparently was erased or wasn’t recorded properly.”4 The four page partial transcript that does exist concludes with the chairperson’s comment as follows: “I’m going to refrain from voting on this again. Let’s have it for our next meeting because I have a little bit more discussion on it.”5 The foregoing speculatively explains why the decision was rendered on August 14, 1986. Also, based upon the record, the protestors and/or their counsel did not appear at that meeting, perhaps leading the Board to incorrectly note there were no protestors, and to conclude, therefore, that no findings of fact or conclusions of law were necessary. In addition to the irregularities and inadequacies of record, the actions of counsel for the protestors deserve scrutiny. When asked at argument on the Petition to Strike why he did not appeal upon receipt of the August 14, 1986 approval, counsel explained that he wrote the Board members “giving the Board opportunity to write a proper decision, . . . .”6 Equally puzzling to the court was the second, modified decision dated the same day as the first decision, July 14, 1986, and mailed October 5, 1986. [617] Appellants contend the Board foiled to comply with Section 908(10) of the Pennsylvania Municipalities Planning Code (Planning Code),7 53 P.S. 10908(H))8 by not delivering a copy of the final decision to the Appellant-protestors who appeared at the July 24, 1986, hearing of the Board. We agree. In Clemens v. Zoning Hearing Board of Upper Gwynedd Township, 3 Pa. Commonwealth Ct. 71, 281 A.2d 93 (1971) our Court found a zoning appeal filed 52 days after the date of the. Board’s decision to be timely where the record did not disclose any notice having been given to the Appellant-protestors or their counsel. In the controversy sub judice there were four protestors who appeared at the Boards hearing on July 24, 1986. It is not evident on the protestors form or elsewhere in the record that these four protestors were represented by counsel. Although there is no indication of record that the protestors testified at the hearing the record does contain a Form for Protestors which bears several of Appellants’ handwritten names and addresses.9 Section 908(10) of the Planning Code, 53 P.S. §10908(10) requires notice of the decision to be delivered to all other persons who have filed their name [618] and address with the Board. The Board failed to notify the Appellants whose names and addresses appear on the Form for Protestors. Further, the record does not indicate that Attorney Sidari had entered his appearance on behalf of all protestors before their initial appeal to the trial court. In accordance with Clemens, the four protestors who filed their names and addresses with the Board before the final hearing were entitled to notice of the Boards decision. By failing to provide notice to these four protestors pursuant to Section 908(10) of the Planning Code the Board erred as a matter of law. Accordingly the appeal to the trial court was timely filed. The order is vacated and this case is remanded to the trial court for a determination on the merits of the appeal. Order Now, August 18, 1988, the order of the trial court is vacated and this matter is hereby remanded for proceedings not inconsistent with this opinion, Jurisdiction relinquished. Footnotes [1] Official Record of Hazleton Zoning Board of Adjustment and Appeals, Form for Protestors, pages 8 and 9. [2] Id. Zoning Hearing Board Approval of Application dated August 14, 1986, page 17. [3] Id. at page 5. [4] Notes of Testimony (N.T.) Hazleton Zoning Board Hearing of July 24, 1986, N.T. at 2. [5] N.T. at 4. [6] N.T. at 5. [7] The Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11609. [8] Section 908(10), 53 P.S. §10908(10) provides: A copy of the final decisions 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. (Emphasis added.) [9] Official Record of Hazleton Zoning Board of Adjustment and Appeals, Form for Protestors pages 8 and 9.