Zoning; Zoning Board Member Conflict of Interest; Failure to Issue Written Opinion within 45 Days of a Public Hearing
Pascal v. City of Pittsburgh Zoning Bd. of Adjustment, 2020 WL 6883240 (Pa. Cmwlth.)(unreported), allocatur granted Oct. 13, 2020, appeal docket 22 WAP 2020
The Pennsylvania Supreme Court granted review to consider whether Commonwealth Court erred in affirming the trial court’s order upholding a grant of zoning relief despite an alleged conflict of interest of a zoning board member and where the City of Pittsburgh Zoning Board of Adjustment (ZBA) failed to issue a written decision within 45 days of a public hearing.
Northside Leadership Conference Board, a non-profit community development corporation, sought various zoning variances and approvals relative to its renovation of property located in the City of Pittsburgh. Following the ZBA’s grant of the requested relief with conditions, Objectors Stephen Pascal and Chris Gates appealed the ZBA’s decision to the Allegheny County Common Pleas Court (trial court). The trial court affirmed the ZBA’s decision and dismissed Objectors’ appeal. Objectors appealed to Commonwealth Court, arguing that the trial court erred by affirming the ZBA’s grant of zoning relief because the ZBA failed to issue a written decision within 45 days of the public hearing as required by the Pittsburgh Zoning Code and Applicant did not agree in writing or on the record to an extension of time within the 45 days. The ZBA countered that because the 45 days did not start until the record closed, and the record did not close until the ZBA received the requested proposed findings of fact and conclusions of law, and Applicant agreed to all continuances thereafter, the ZBA’s decision was timely. Objectors further argued that the trial court erred by affirming the ZBA’s grant of zoning relief where one of the ZBA members had an actual or apparent conflict of interest in Applicant’s application and failed to recuse herself. Specifically, Objectors asserted that ZBA hearing member LaShawn Burton-Faulk (Burton-Faulk) sits on Applicant’s Board of Directors (Board) and has previously served as the Board’s president.
As to the timeliness of the ZBA’s decision, Commonwealth Court found that, notwithstanding the Pittsburgh Zoning Code’s direction that the ZBA issue a decision within 45 days of hearing, “the ZBA’s website makes it clear that the 45 days commences after the record is closed,” “the ZBA clearly left the record open until 2 weeks after the transcript became available,” and “[b]efore the 45 days elapsed, counsel agreed in writing to extensions, through the filing of the ZBA’s decision.” Slip op. at 6. The court reasoned that, because Applicant had agreed in writing to an extension of time, the Code did not mandate a deemed denial; thus, the trial court did not err by affirming the ZBA’s grant of zoning relief “since the ZBA issued a written decision within 45 days after the record was closed.” Id.
As to Objectors’ conflict of interest claim, Commonwealth Court agreed that “if Objectors’ claims are true, Burton-Faulk’s participation in the ZBA’s hearing and decision may give the appearance of possible prejudice and, thus, disqualify her from participating in the hearing and the decision.” Slip Op. at 7. However, the court explained that such disqualification of a ZHB member does not “in and of itself require a reversal of the decision that was reached” where “[t]here has been no allegation that the member in question controlled or unduly influenced the other members of the [ZBA] in any manner which would raise doubts as to the validity of their votes.” Id., quoting Borough of Youngsville v. Zoning Hearing Bd. of Borough of Youngsville, 450 A.2d 1086, 1090-91 (Pa. Cmwlth. 1982). Accordingly, the court concluded that Burton-Faulk’s possible disqualification did not require reversal of the ZBA’s decision.
The Supreme Court granted allocatur to determine the following issues:
(1) Whether the Commonwealth Court erred in affirming the trial court’s order upholding the grant Owner of the zoning relief requested despite the conflict of interest of ZBA member Burton-Faulk?
(2) Whether the Commonwealth Court erred in affirming the trial court’s order upholding the grant to Owner of the zoning relief requested where the ZBA failed to issue a written decision within forty-five (45) days of the public hearing and where applicant did not agree in writing or on the record to an extension of time within forty-five (45) days of the public hearing?
Additionally, Supreme Court directed the parties to state their positions – and to stipulate if possible – regarding whether LaShawn Burton-Faulk served on the Northside Leadership Conference Board of Directors during the Zoning Board of Adjustment proceedings.
For more information, contact Kevin McKeon or Dennis Whitaker.