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Quest Land Development Group, LLC v. Township of Lower Heidelberg

April 30, 2009

QUEST LAND DEVELOPMENT GROUP, LLC AND GLEN-GERY CORPORATION, APPELLANTS
v.
TOWNSHIP OF LOWER HEIDELBERG, BERKS COUNTY, PENNSYLVANIA, ZONING HEARING BOARD OF HEIDELBERG TOWNSHIP, BERKS COUNTY, PENNSYLVANIA



The opinion of the court was delivered by: Senior Judge McCLOSKEY

Argued: March 30, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Quest Land Development Group, LLC (Quest) and Glen-Gery Corporation (Glen-Gery) (at times collectively referred to as Appellants), appeal from an order of the Court of Common Pleas of Berks County (trial court), which sustained the preliminary objections of the Township of Lower Heidelberg (Township) and the Zoning Hearing Board of Lower Heidelberg Township (Board) and dismissed Appellants' amended complaint.*fn1 We affirm.

In 2004, Quest filed a request for a special exception to construct ninety-two single-family homes in zoning districts located in the Township. Glen-Gery was the owner of the property and entered the action as an intervenor. The Board denied Quest's application for a special exception. Appellants appealed to the trial court which affirmed the decision of the Board. Appellants then appealed to this Court.

In Quest Land Development Group, LLC v. Zoning Hearing Board of Lower Heidelberg Township, Lower Heildelberg Township and Glen Gery Corporation (Pa. Cmwlth., Nos. 431, 432 C.D. 2006, filed November 20, 2006), this Court affirmed the order of the trial court. We noted that Appellants had the burden of establishing that they met the criteria for a special exception, as specified in the zoning ordinances in question. We also noted that the three zoning ordinances at issue all required that public or community sewer facilities be provided. We then determined that Appellants failed to establish that a public or community sewer system could be provided. As such, we concluded that Appellants were not entitled to the grant of a special exception.

Appellants filed a petition for allowance of appeal to the Pennsylvania Supreme Court. Appellants then filed an application for leave to amend the petition for allowance of appeal in order to request a remand on the basis of after-discovered evidence. In Quest Land Development Group, LLC v. Zoning Hearing Board of Lower Heidelberg Township, 594 Pa. 2, 934 A.2d 686 (2007), the Supreme Court granted Appellants leave to amend their petition for allowance of appeal. The Supreme Court then remanded the case to this Court for remand to the trial court. The trial court was given instructions to consider whether the case should be reopened on the basis of after-discovered evidence.*fn2

On January 24, 2008, while the remanded matter was pending before the trial court, Appellants filed a new cause of action in the form of a complaint against the Township and the Board.*fn3 Appellants later filed an amended complaint on March 3, 2008. The amended complaint alleged that when the Board denied Appellants' request for a special exception in 2005, the Board was comprised of three members, Richard Essig, Kandis Moser and David Thun. Appellants noted that pursuant to Section 1104 of the Public Official and Employee Ethics Act, 65 Pa. C.S. §1104, Board members were required to file a statement of financial interests and that no public official was permitted to take the oath of office without filing said statement. Appellants alleged that the three Board members identified above did not file statements of financial interest for calendar years 2004 and 2005.

Appellants also noted that every person appointed to office in a second class township was required to take an oath of office and that a copy of the oath was to be filed with the Township secretary. Appellants further alleged that the three Board members did not take the required oath and, as such, failed to file a copy of the oath with the Township secretary.

Appellants claimed that as the three Board members failed to file statements of financial interests and failed to take the required oath, they were not vested with the authority of the quasi-judicial office to which they were appointed. Therefore, Appellants alleged that the Board was without authority to render a decision as to their request for a special exception, thereby rendering the decision they issued in 2005 null and void. As the Board's decision was null and void, Appellants alleged that the Board failed to rule on their special exception application within the required sixty days and that the application should, therefore, be deemed approved.

The Township and the Board filed preliminary objections to the amended complaint. The Township and the Board alleged that Appellants were improperly raising an issue that they never raised during prior litigation before the Board or this Court. Additionally, the Township and the Board argued that a ministerial or technical error on the part of the Board members as to the filing of financial statements or the taking of an oath did not negate the decisions that were rendered. Further, the Township and the Board claimed that the de facto officer doctrine applied, thereby rendering the Board's decision valid. The trial court agreed that the de facto officer doctrine applied. As such, the trial court granted Appellant's preliminary objections and dismissed the amended complaint. Appellants filed a notice of appeal with the trial court.

On appeal, Appellants allege that the trial court erred in applying the de facto officer doctrine. Appellants claim that they should be permitted redress pursuant to the void ab initio doctrine. We disagree.

Where preliminary objections are sustained based on issues of law, our scope of review is plenary. Yaracs v. Summit Academy, 845 A.2d 203 (Pa. Cmwlth.), petition for allowance of appeal denied, 579 Pa. 708, 857 A.2d 682 (2004), cert. denied, 543 U.S. 1147 (2005). When considering preliminary objections in the nature of a demurrer, we must accept as true all well-pleaded facts and any reasonable inferences thereto. Crozer Chester Medical Center v. Department of Labor and Industry, Bureau of Workers' Compensation Health Care Services Review Division, 955 A.2d 1037 (Pa. Cmwlth. 2008). The preliminary objections may only be sustained where it is established with certainty that recovery is not possible. Id. at 1040.

Appellants allege that the void ab initio doctrine applies to this case. Appellants cite to Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033 (2006) for support of their claim. In that case, Glen-Gery (also an Appellant in the present case) challenged procedural defects in the enactment of two ordinances. Glen-Gery brought the action in 2002. The ordinances were passed in 1995 and 1997, respectively, and contained provisions that any challenges must be raised within thirty days of their respective effective dates. As the ordinances ...


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