Commonwealth Court explains when a zoning officer's interpretation is subject to deadlines for appeal

A recent Commonwealth Court decision answers two important questions about how zoning officers function under Pennsylvania law: (1) whether verbal statements from a zoning officer can serve as official “determinations” or “interpretations” which trigger a 30-day appeal period under the Pennsylvania Municipalities Planning Code (MPC); and (2) whether an appealable “interpretation” or “determination” must specifically come from the zoning officer.

The Commonwealth Court answered “yes” to both of these questions in City of Bethlehem v. ZHB of City of Bethlehem and Lady Mohawk, LLC.

The decision is rooted in an interpretation and application of Section 615 of the MPC which states, in part, that “[a]ll appeals from decisions of the zoning officer shall be taken in the manner set forth in [the] act.”

Background

In City of Bethlehem, Lady Mohawk, LLC (Applicant) owned three properties, each of which were improved with single-family detached dwellings, and were used as student housing rentals. Each property was registered with the City of Bethlehem for this use. In August 2020, the Applicant submitted a sketch plan proposing to consolidate the properties, demolish the existing homes, and construct a cluster of three townhomes.

In October 2020, the Applicant submitted a land development application which reflected what was proposed in the sketch plan. While the land development application was pending, the City amended its Zoning Ordinance by creating a “Student Housing Overlay District” which limited new student housing to certain areas in the City (the Amendment).

As a result, on March 4, 2021, the Applicant’s counsel emailed the Zoning Officer for the City requesting a determination that the Zoning Ordinance as it existed prior to the enactment of the Amendment applied to the pending land development application. In response, the Zoning Officer requested and received additional information from the Applicant.

Then, on April 27, 2022, the City’s Director of Planning and Zoning transmitted correspondence to the Applicant advising that (i) the properties were operating as permitted student housing rentals prior to the Amendment, and (ii) that while the townhomes proposed by the Applicant were permitted by right, they could not function as student rental units because the properties were outside of the overlay district created by the Amendment, i.e. that the Amendment applied to the land development application.

The April 27, 2022 letter was not signed by the Zoning Officer, made no reference to it being an appealable determination made by the Zoning Officer, or stated that it could be appealed by a certain date. Sometime after the letter was sent, the Zoning Officer apparently spoke with Applicant’s counsel and advised that the letter “should be appealed by the Applicant.”

ZHB Proceedings

On June 22, 2022, the Applicant filed an appeal to the Zoning Hearing Board (the ZHB) on the “determination” and issue of whether the Amendment applied to the pending land development application. From the outset of its analysis, and with the backdrop of Section 615 of the MPC, the ZHB analyzed whether the Applicant’s appeal to the ZHB was timely and complied with Section 914.1(b) of the MPC, which requires that “[a]ll appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.”

To decide the timeliness issue, the ZHB needed to first determine if and when an appealable “determination” was made. In deciding this issue, the ZHB found that the April 27, 2022 letter from the City’s Director of Planning and Zoning did not constitute an appealable determination because it was not issued by the Zoning Officer as required by Section 615 of the MPC. The ZHB then observed that the record reflected that the Zoning Officer’s conversation with the Applicant’s counsel did occur, but that no party argued that the appeal from the apparent determination supposedly adopted during that conversation was untimely.

In reaching its decision, the ZHB held that that Section 615 of the MPC clearly requires that the interpretation of the appointed zoning officer, and not another individual from the municipality, triggers the 30-day appeal period under Section 914.1(b) of the MPC. On the merits, the ZHB ruled that the Amendment did not adversely impact the land development application since it was not in effect at the time the land development application was filed. The City appealed to the Court of Common Pleas which affirmed the ZHB’s decision.

Commonwealth Court Analysis

The Commonwealth Court followed the plain language of the MPC and found that because the April 27, 2022 letter was prepared by the City’s Director of Planning and Zoning, and not the Zoning Officer, it was not an appealable “determination” and, thus, the 30-day appeal period under the MPC was not triggered.

From this, the Commonwealth Court next turned to the factually troubling issue of whether the Zoning Officer’s verbal conversation with the Applicant’s counsel created or constituted an appealable determination.

Ultimately, the Commonwealth Court held that “case law supports the contention that an oral statement of a zoning officer can constitute an appealable determination,” however it was unclear in this case whether the Zoning Officer made statements to the Applicant’s counsel which constituted an appealable determination, and likewise unclear when this conversation occurred. Without such evidence or clarity, the Commonwealth Court was unable to determine if the conversation constituted an appealable determination, and whether the appeal from this undated conversation took place.

Thus, because the record did not reflect the conclusion that the Zoning Officer adopted the conclusions in the April 27, 2022 letter, there was never an appealable determination to appeal from. Therefore, the ZHB did not have jurisdiction to address the issues raised in Applicant’s appeal.

Key Takeaways

The lessons of this case are that: (1) all appealable “determinations” or “interpretations” under Section 615 of the MPC must come from the Zoning Officer him or herself; and (2) an oral statement from the Zoning Officer may constitute an appealable determination, and an appeal from such “determination” or “interpretation” must be filed within 30-days.

This case also stresses the intricacies of the zoning and land development processes, and that even “informal” conversations with a zoning a Zoning Officer trigger key deadlines, and failure to adhere to same could cause an applicant to lose significant rights.

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