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In re Appeal of McGlynn

May 21, 2009

IN RE: APPEAL OF SHAWN F. MCGLYNN, MARTIN BOKSENBAUM, JANN DILLMAN, DONALD L. RYAN, JR., MARYLOU E. WALCK, AND TREVOR S. JONES FROM THE DECISION OF THE BOARD OF SUPERVISORS OF LEHIGH TOWNSHIP GRANTING CONDITIONAL USE APPROVAL TO L.U.R.R.S.


Appeal of: Shawn F. McGlynn, Martin Boksenbaum, Jann Dillman, Donald L. Ryan, Jr., Marylou E. Walck, and Trevor S. Jones.

The opinion of the court was delivered by: Judge Simpson

Argued: April 2, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, (P) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

An important issue in this appeal is whether the failure to strictly comply with the public notice provisions of the Pennsylvania Municipalities Planning Code (Code)*fn1 resulted in a denial of procedural due process so as to render a decision on a conditional use application void ab initio.

The Board of Supervisors (Board) of Lehigh Township (Township) granted a conditional use application (Use Application) filed by L.U.R.R.S. (Applicant). The Use Application sought approval for development of a mobile/manufactured home park. Objectors,*fn2 who actively participated in multiple hearings on the Use Application, appealed the Board's decision to the Court of Common Pleas of Northampton County (trial court). In addition to challenging the Township's notice procedures, Objectors asserted Applicant does not own all the property subject to the Use Application, the Application is moot, and the Application failed to meet the standards of the Lehigh Township Zoning Ordinance (Ordinance) for the grant of a conditional use application and for a mobile/manufactured home park. The trial court affirmed the Board's decision, and Objectors appeal. We affirm.

I. History

In June 2004, Applicant filed the Use Application with the Township seeking to construct a mobile/manufactured home park on property located along Mountainview Drive (Property). The 103-acre Property is located in a Village Residential District (VR), which permits a mobile/manufactured home park as a conditional use. Applicant proposed to construct 245 single-family homes designated as North Woods Manufactured Home Community.

The Township Planning Commission recommended approval of the Use Application. Accordingly, the Township advertised that the Board would hold a public hearing on the Use Application at its January 31, 2006 meeting. The public notice appeared in the January 19, 2006 edition of a local newspaper of general circulation. The Township also published a second notice of the public hearing in the January 23, 2006 edition of the same newspaper. These publications occurred four days apart.

The Board held the conditional use hearing as scheduled. Applicant submitted evidence in support of its Use Application and Objectors, representing themselves, cross-examined Applicant's witnesses. The Board's hearing did not conclude on January 31; rather, the Board held additional hearings on February 28 and March 27, 2006. Objectors again actively participated in the hearings by cross-examining Applicant's witnesses and offering evidence.

In a comprehensive decision, the Board set forth findings of fact and conclusions of law, and examined each conditional use requirement of the Ordinance as well as the specific requirements of a mobile/manufactured home park. It concluded Applicant showed compliance with all zoning requirements and, therefore, granted the Use Application with conditions.*fn3

Retaining counsel, Objectors appealed the Board's decision to the trial court. Among a variety of motions, Objectors sought to reopen the record. Certified Record (C.R.) Item 9. Objectors also asserted Applicant engaged in unauthorized tree clearing on the Property. The trial court ordered that "the entire matter will be remanded to the [Board] for purposes of presentation of any additional testimony and evidence." Id. (emphasis added).

The Board held remand hearings in April, May and June 2007. Objectors through Counsel actively participated in the remand hearings. In October 2007, the Board issued a second decision confirming its May 2006 decision as modified by an interim stipulation between the Township and Applicant. Addressing the matters subject to remand, the Board noted the wetlands issue arose during the first round of conditional use hearings and, as a result, it imposed Conditions 7, 8 and 10, noted below. Concerning the utility easement, the Board observed that relocation of homes, roads, and water retention basins impacted by the easement would be addressed in the subdivision and land development process. Finally, the Board explained the Township previously issued and withdrew a violation notice regarding tree removal on the Property. In short, the Board found the testimony on remand did not affect its decision on the Use Application.

Objectors filed a second appeal to common pleas court. A different trial judge heard Objectors' appeal. The trial court affirmed.*fn4

II. Present Appeal

Objectors assign five errors in the Board's determination granting the Use Application. Objectors first assert the Township failed to strictly comply with the notice provisions of the MPC. Contrary to statute, the Township published two notices of the Board's first conditional use hearing only four days apart. Statutory law requires publication five days apart.

Objectors also assert Applicant does not own all the land on which it seeks to construct the mobile/manufactured home park and failed to provide authorization to include the unowned land in its Use Application. Objectors' third issue is whether the modifications to the site plan render the Use Application moot.

In their final two issues, Objectors maintain the Use Application does not comply with the Ordinance's general requirements, as well as the specific requirements for mobile/manufactured home parks. We address each argument in turn.

III. Discussion

a. Notice

The first issue Objectors raise involves the concept of procedural due process. The fundamental components of procedural due process are notice and opportunity to be heard. Pessolano v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 632 A.2d 1090 (Pa. Cmwlth. 1993).

Regarding only the conditional use hearing held January 31, 2006, the Township advertised the Board's hearing on January 19 and then again on January 23. The publications occurred four days apart and, according to Objectors, constituted insufficient public notice under the MPC. There are no assertions that the Board failed to publish notice of the remaining five conditional use hearings held in 2006 and 2007. It is also important to note Objectors do not assert any ...


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