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decided: March 13, 1985.


Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Bronia Sultanik v. Board of Supervisors of Worcester Township and Worcester Township, No. 81-20163.


Jules Pearlstine, with him, Jeffrey T. Sultanik and Frank W. Jenkins, Pearlstine, Salkin, Hardiman and Robinson, for appellant.

Robert S. Ryan, Drinker, Biddle & Reath, with him, Melvyn J. Tarnopol and Joseph M. Manko, Wolf, Block, Schorr and Solis-Cohen, and Philip R. Detwiler, Philip R. Detwiler & Associates, P.C., for appellees.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Craig. Judge Williams, Jr., did not participate in the decision in this case.

Author: Craig

[ 88 Pa. Commw. Page 216]

This zoning appeal involves claims that a zoning ordinance unlawfully excludes twin-home residences and shopping centers. Initially, however, the case presents a question of due process in curative amendment proceedings:

In view of the rule which invalidates a local zoning board decision when the functions of the municipality's adversary counsel and adjudicative counsel are commingled in the person of one attorney, is a local curative amendment decision also invalid when such adversary and adjudicative attorneys are different individuals but from the same law firm, throughout most of the proceedings?

Another question, relating to relief, is the following:

What is the court's role where the municipal governing body has acknowledged that its own ordinance is exclusionary and, as relief to the landowner, would allow the requested residential use, but at reduced density and on a minor fraction of the tract?

History of the Case

Owner Bronia Sultanik filed curative amendment proceedings under the Pennsylvania Municipalities Planning Code (MPC)*fn1 with Worcester Township, Montgomery County, concerning a 204.5 acre tract on Morris Road, zoned AGR-Agricultural. The proposal called for (1) 1,022 dwelling units in twin-home residences on 192.5 of the acres, at a density of 5.3 units per acre, and (2) a related shopping center of 82,900 square feet on the remaining 12 acres. The landowner claimed that the township's ordinance unlawfully excluded twin homes and shopping centers.

[ 88 Pa. Commw. Page 217]

The proceedings before the Board of Supervisors, the township governing body, filed in December, 1977, did not conclude until October, 1981, partly because of intervening litigation; however, the board's curative amendment hearings stretched over more than 33 months, in part because the supervisors limited the conducting of hearings to not more than two hours per month.

After the first hearing, in which Township Solicitor Philip Detweiler stated that he would present the township's case and also advise the board, Attorney Joseph Manko thereafter appeared to prosecute the township's adversary position in opposition to the landowner's challenge, while a member of his law firm, Franklin Spitzer, and later another member of the same law firm, Robert Boote, conducted the hearings and ruled upon objections to the evidence offered by their own partner as well as by the landowner's attorney, as shown by numerous specific rulings in the record.*fn2 Only at the last (thirty-third) hearing did the township replace Mr. Boote of Mr. Manko's law firm with another attorney, Robert Ryan, from a different law firm.

The board has agreed that its ordinance was exclusionary in failing to make any provision for twin homes, but considers it not exclusionary with respect to commercial shopping centers because the zoning map describes commercial zones and some commercial use exists. The board, by its order, offered relief of its own devising to the landowner, allowing twin-home development on 75 of the 192 acres proposed for that

[ 88 Pa. Commw. Page 218]

    use, at a density of 2.5 units per acre instead of 5.3 units. Thus the board authorized the requested residential use, but would limit it to about 19% of the proposed number of units, on not more than 39% of the proposed residential site area.

The owner appealed to the Montgomery County Court of Common Pleas, raising questions concerning the residential relief tendered, the alleged exclusion of shopping centers, and alleged irregularities in the township's mode of conducting the curative amendment proceedings. The court, without taking additional evidence, approved the township's residential relief order on the basis of the local board's findings, concluded that no shopping center exclusion had been established, and decided that the township's employment of one law firm for both the township's opposition to the challenger and for the board, during most of the proceedings, was "almost improper" but not fatal because not shown to be harmful or prejudicial. Hence, the trial court dismissed the appeal.

On appeal here, the issue as to the fairness of the township's procedure -- fully preserved for this court -- is a question which logically comes first.

Procedural Due Process -- The Fairness of the Proceedings

At the outset, we must acknowledge that, in the curative amendment procedure added to the MPC in 1972,*fn3 we have an unusual -- if not anomalous -- approach which designates the municipal legislative body as an adjudicative tribunal empowered to consider and decide, in the first instance, the validity of its own municipal legislation -- the zoning ordinance enacted or amended by that same body or its predecessors.

[ 88 Pa. Commw. Page 219]

Although a challenging landowner has an option to take his validity attack instead to the zoning hearing board,*fn4 which is a different body (albeit composed of members appointed by the governing body), there is no doubt that, if the landowner elects to go before the governing body, that body must nevertheless proceed fairly when acting under the MPC in its quasi-adjudicative role. All municipal adjudicative bodies must avoid unnecessary conflicts and commingling of incompatible functions whenever possible. See Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969) (one of the officials who initiated civil service disciplinary proceeding also sitting as a member of a civil service commission; civil service action reversed, not remanded). In Donnon v. Downingtown Civil Service Commission, 3 Pa. Commonwealth Ct. 366, 283 A.2d 92 (1971), this court reversed and remanded a civil service commission decision where a borough solicitor had assisted in initiating the charges and then functioned as legal adviser to the commission.

Of course, the landowner here does not attack the township board's conclusion that the zoning ordinance was exclusionary with respect to the residential twin-homes proposal. Both parties understandably continue to agree on that point because, as a matter of law, the township's zoning ordinance on its face makes clear that, aside from single-family dwellings, only multiple dwellings -- defined as involving three or more units -- are allowed, thus making no provision for the twin homes requested.*fn5

[ 88 Pa. Commw. Page 220]

However, as to the relief tendered with respect to the residential exclusion, and the refusal to conclude that the ordinance was exclusionary with respect to provision for shopping centers, the landowner claims that the decision is void on a commingling ground.*fn6

[ 88 Pa. Commw. Page 221]

The facts concerning the commingling issue are apparent on the record. When the township hired Mr. Manko as "special environmental counsel" to represent the township's adversary position against the landowners' claims, the township's board of supervisors also hired, for their adjudicative function as the hearing tribunal in the curative amendment proceedings, Attorney Spitzer from Mr. Manko's law firm. As late as the fourth session, the board chairman identified Messrs. Manko and Spitzer together as "consulting attorneys for the township." Later, the township labeled Mr. Spitzer as "parliamentarian" for the board as hearing tribunal. Nearer the end of the proceedings, the township replaced Mr. Spitzer with Mr. Boote, also a member of the same law firm as that of Mr. Manko, adversary counsel for the township.

The title of "parliamentarian" is, of course, foreign to adjudicative proceedings and does not fairly describe what the record shows to have been the functions of Messrs. Spitzer and Boote in this case. As illustrated by the record pages listed as examples in n.2 above, and at numerous other places in the record, they functioned as legal counsel to the township board of supervisors sitting in its adjudicative role. The record shows each of them conducting the hearings as a hearing examiner or administrative law judge would -- presiding and ruling on objections from both sides as to evidence, in many instances excluding testimony offered on behalf of the landowner to which their partner objected. Although, as the township's brief contends, they may not have excluded any documentary evidence, there is no doubt that they functioned to control the admission of testimony. At one point (189b) Mr. Boote answered for a witness and, upon the landowner's objection, directed counsel to proceed to the

[ 88 Pa. Commw. Page 222]

    next question, characterizing the landowner's line of inquiry as "senseless."

The landowner maintained a continuing objection to the township's employment of adjudicative counsel from the same law ...

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