No. 54 W.D. Appeal Docket, 1983, Appeal from the Order of February 17, 1983 of the Commonwealth Court of Pennsylvania at No. 1471 C.D., 1981, Reversing the Order of the Court of Common Pleas of Allegheny County, Pennsylvania of May 22, 1981 at SA 172 of 1981, 72 Pa. Commonwealth Ct. 210,
Flaherty, Justice. Hutchinson, J., dissents. Nix, C.j., files a dissenting opinion. Zappala and Papadakos, JJ., did not participate in the consideration or decision of this case.
This is an appeal from an order of the Commonwealth Court, 72 Pa. Commw. 210, 455 A.2d 1280, which reversed an order of the Court of Common Pleas of Allegheny County affirming the removal for just cause of two members of the Zoning Hearing Board of the Borough of Blawnox under the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, art. I, § 101, et seq., as amended, 53 P.S. § 10101 et seq. We conclude that the removal was proper
and accordingly reverse the order of reinstatement issued by the Commonwealth Court.
In the summer of 1980, the Borough of Blawnox was pursuing the development of a high rise apartment building for low income, handicapped and elderly citizens of the borough. At a meeting of officials involved in the project, including Zoning Board Members Edith Olszewski and John Skanderson, appellees in the instant appeal, the developer, Crossgates, Inc., expressed uncertainty as to whether the proposed construction was in compliance with height, square foot per living unit, and parking regulations of the borough zoning ordinance. As a result, Crossgates formally notified the Borough Council of the possible need for zoning variances and requested the scheduling of a variance hearing before the Zoning Hearing Board (Board), which Borough Council (Council) sought to expedite, due to unspecified time constraints attached to the federal and county cooperation agreement. Due to a personal scheduling conflict, Chairman and Board Member, Edith Olszewski, could not schedule the hearing immediately, but scheduled it for August 6, approximately one month after the request for a hearing was made. In the interim, the borough solicitor and another attorney reviewed the ordinance to assess the need for variances and concluded that the proposed construction was within the ordinance and that no variances were required, which opinion was submitted to Council. Council, in turn, so apprised the borough building inspector who issued a building permit.
On August 6, 1980, the Zoning Hearing Board convened for a general business meeting. Among the items of business was the possible hiring of legal counsel to review the zoning ordinance for the proposed high rise construction project's compliance. Notwithstanding that some previous requests to the Council for the retention of legal counsel had been denied, the Board voted unanimously to retain Attorney James Voss and a motion carried that the Council was to be notified.
With Attorney Voss acting as their counsel, appellees Olszewski and Skanderson then appealed the issuance of the permit to the Court of Common Pleas of Allegheny County, which dismissed the appeal for lack of standing. The third member of the Board, Mr. Henry R. Witas, did not join in the appeal. On the final day of the appeal period from the issuance of the permit, an individual of the borough, Patrick Connolly, filed an appeal (Connolly appeal) to the Zoning Hearing Board on the same issues by delivering the appeal to appellee Olszewski at her home without tendering the $100 appeal fee required by Borough Resolution 78-6. The practice of filing an appeal directly with a member of the Board was not unusual according to the testimony of the borough secretary.
A hearing on the Connolly appeal was scheduled and appellees Olszewski and Skanderson, in view of their earlier appeal action, were asked to recuse themselves from hearing the matter. Upon their refusal, by order of the Court of Common Pleas on the motion of the borough, appellees Olszewski and Skanderson were replaced on the Board by two temporarily appointed members. The Connolly appeal, however, was eventually dismissed for want of prosecution by Connolly.
By letter dated December 23, 1980, appellees Olszewski and Skanderson were advised that the Council intended to remove them from the Board pursuant to Section 905 of the Municipalities Planning Code, supra, 53 P.S. § 10905, providing in pertinent part:
Any [zoning] board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the governing body which appointed the member, taken after the member has received fifteen days' advance notice of the intent to take such a vote.
The reasons cited for the removal were: improper appeal of the issuance of a building permit to Crossgates, Inc. and refusal to recuse from the Board hearing on the Connolly appeal on identical issues; retention of legal counsel without
the authorization of Council, to represent both Olszewski and Skanderson in their appeal to the Court of Common Pleas; retention of legal counsel without the authorization of Council to represent the Board in various other appeals before the Board, after having been notified that there were not sufficient funds to retain a solicitor; unauthorized retention of legal counsel causing the borough to incur unnecessary expenses, including the charges of the borough solicitor and the attorney retained by the Board; and failure to collect the required filing appeal fee for the Connolly appeal.
Council conducted a hearing on the charges, and appellees were eventually removed from Board membership by unanimous vote of the Council, one member not participating. Appeal was taken to the Court of Common Pleas of Allegheny County pursuant to Section 752 of the Local Agency Law, Act of April 28, 1978, P.L. 202, No. 53, § 5, 2 Pa.C.S.A. § 752, where additional testimony was taken and ...