Court Provides Clarity on the Applicable Scope of Review in Land Use Appeals

The Legal Intelligencer

(by Alyssa Golfieri)

Zoning hearing boards have exclusive jurisdiction to hear and render final adjudications on nine discrete matters, ranging from substantive challenges to the validity of land use ordinances, to appeals from determinations of a zoning officer, to applications for variances and special exceptions from the terms of zoning and floodplain ordinances. See Section 909.1(a) of the MPC, 53 P.S. Section 10909.1(a). If a party to a land use matter is unhappy with a zoning hearing board’s final adjudication, he has 30 days to appeal the decision to the trial court. See Section 1002-A of the MPC, 53 P.S. Section 11002-A.

When rendering final adjudications, zoning hearing boards sit as fact finders. This means zoning hearing boards are the sole judge of the credibility of witnesses and the weight afforded evidence. See Tri-County Landfill v. Pine Township Zoning Hearing Board, 83 A.3d 488, 518 (Pa. Commw. Ct. 2014). As such, when a zoning hearing board’s decision is appealed to the trial court, the trial court should not, with one exception addressed below, engage in fact-finding or disturb the board’s credibility determinations. See Section 1005-A of the MPC, 53 P.S. Section 11005-Asee also Manayunk Neighborhood Council, 815 A.2d at 652 (Pa. Commw. Ct. 2002). Rather, the trial court must uphold a zoning hearing board’s determination so long as the board did not commit a manifest abuse of discretion—an abuse of discretion occurs only when a zoning hearing board’s findings are not supported by substantial evidence, which Pennsylvania courts have defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Berman v. Manchester Township Zoning Hearing Board, 540 A.2d 8, 9 (Pa. Commw. Ct. 1988); Hertzberg v. Zoning Board of Adjustment, 721 A.2d 43, 46 (Pa. 1988)—or an error of law.

The one exception to a trial court’s deferential standard of review is a circumstance where the trial court, upon motion by a party, concludes the zoning hearing board improperly excluded evidence.  In such circumstances, the trial court may open the hearing record and accept additional evidence pursuant to Section 1005-A of the MPC, 53 P.S. Section 11005-A. Section 1005-A provides, in relevant part:

“If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence … if additional evidence is taken … the court shall make its own findings of fact based on the record below as supplemented by the additional evidence …”

To avoid its findings being disturbed on appeal, a zoning hearing board typically accepts all evidence presented before it, even when the evidence is arguably irrelevant. Then, when rendering its decision, the zoning hearing board uses its sole discretion to give the evidence the weight it deserves. While this practice does not eliminate a party’s right to request relief from the trial court under Section 1005-A, it does significantly limit the trial court’s ability to conclude a zoning hearing board improperly excluded evidence.

Since relief under Section 1005-A is rare, when a trial court does agree to take additional evidence, the next question often becomes—what is the trial court’s scope of review? Does the last line of Section 1005-A—“if additional evidence is taken … the court shall make its own findings of fact based on the record below as supplemented by the additional evidence”—mean the trial court must consider the entire matter de novo? What if the zoning hearing board rendered a decision on five, 10 or even 15-plus issues, but the trial court only takes additional testimony on one limited point? Under that scenario, should the trial court apply a deferential scope of review to the issues for which no additional evidence was taken? Before the Commonwealth Court’s July 29, 2019, decision in Sowich v. Zoning Hearing Board of Brown Township, 214 A.3d 775 (Pa. Commw. Ct. 2019), some argued that any time a trial court accepted additional evidence the court’s deferential standard of review transitions to de novo for all matters. The Commonwealth Court’s decision in Sowich clarified this is not, however, the case.

In Sowich, a landowner appealed a notice of violation to the Brown Township Zoning Hearing Board (the ZHB), challenging the township’s zoning official’s determination that the depositing, storing, and removing of fill, the grinding of stone, and the storing of concrete barriers on his property was not a legally nonconforming use. The ZHB upheld the zoning official’s decision in-part and overturned the decision in-part, finding the use of the property as a fill operation was a legally nonconforming use, but the crushing of stone and the storing of five or more concrete barriers was not. The landowner and several objecting neighboring property owners appealed the ZHB’s decision to the trial court.

On appeal, the landowner filed a motion pursuant to Section 1005-A to supplement the record on one limited point—whether the grinding and crushing of stone was an inherent part of the depositing, storing, and removal of fill activities. The trial court granted the landowner’s motion and remanded the matter back to the ZHB to take additional evidence. As instructed, the ZHB held a remand hearing and then forwarded the hearing transcript and exhibits to the trial court “for further proceedings.”  The trial court then affirmed the ZHB’s decision. In doing so, the trial court applied a deferential scope of review to all matters, including the one for which additional evidence was accepted.

The landowner and objectors appealed to the Commonwealth Court, challenging, among other things, the scope of review applied by the trial court. The landowner contended that once the trial court accepted additional evidence, Section 1005-A required it to review the matter, in its entirety, de novo (i.e., the ZHB’s findings were no longer relevant or controlling). The Commonwealth Court disagreed.

Relying heavily on its previous decision in Cherry Valley Associates v. Stroud Township Board of Supervisors, 554 A.2d 149, 151 (Pa. Commw. Ct. 1989), the Commonwealth Court held, in relevant part, that a trial court’s decision to accept additional evidence, either itself or via remand to the zoning hearing board, does not automatically render the scope of review on all matters de novo. Rather, a trial court is required to make findings of fact on, and thus review de novo, only the limited point for which additional evidence was taken. Accordingly, a trial court should not disturb a zoning hearing board’s credibility determinations, the weight the board afforded the evidence or the board’s findings (so long as they were supported by substantial evidence) on matters for which no additional evidence is taken.

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Reprinted with permission from the February 13, 2020 edition of The Legal Intelligencer  © 2020 ALM Media Properties, LLC. All rights reserved.