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In re Appeal of Arnold

August 13, 2009

IN RE: THE APPEAL OF EDWARD H. ARNOLD, V. RITA GOE AND HARRALL ROBINSON FROM THE DECISION OF NORTH CORNWALL TOWNSHIP BOARD OF SUPERVISORS
IN RE: THE APPEAL OF CITIZENS FOR RESPONSIBLE GROWTH, ELLIE SALAHUB AND MARY JANE SMITH FROM THE DECISION OF NORTH CORNWALL TOWNSHIP BOARD OF SUPERVISORS REGARDING THE WAL-MART
APPEAL OF: CITIZENS FOR RESPONSIBLE GROWTH, ELLIE SALAHUB, MARY JANE SMITH, EDWARD H. ARNOLD AND V. RITA GOE



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, President Judge

ORDER

AND NOW, this 5th day of November, 2009,

IT IS HEREBY ORDERED that the above-captioned opinion filed August 13, 2009, shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Appellants appeal the grant of a conditional use application by the North Cornwall Township Board of Supervisors (Board), which permits the construction of a 225,000 square foot Wal-Mart Supercenter and Tire Lube Express store.

The subject of this dispute is 38.5 acres of land (Property) located along Cornwall Road in North Cornwall Township (Township) owned by the Wal-Mart Real Estate Business Trust (Wal-Mart). In August 2003, the Township rezoned the Property from office and institutional (O&I) to general commercial (C-2).*fn1 On May 6, 2005, Wal-Mart filed a conditional use application with the Board seeking approval to construct a Wal-Mart Supercenter retail store on 29.8 acres. The Board held a series of 16 public hearings on the application starting on July 12, 2005. Numerous objectors including Township residents and non-residents presented evidence and testified at the hearings. The Board concluded receipt of evidence and public comment at the December 12, 2005 hearing and announced that the hearing was continued until December 28, 2005, for deliberation and possible decision. On December 28, 2005, the Board*fn2 voted 2-1 to approve the application subject to several conditions. The votes were cast in writing and read into the record.

On January 3, 2006, Ralph Heister replaced Charles Brooks as a member of the Board. At the January 19, 2006 meeting, the Board approved the issuance of the written notification of the conditional use decision in accord with the December 28, 2005 decision, along with the required findings and conclusions. The Township's special counsel mailed written notice of the December 28, 2005 decision accompanied by the required findings and conclusions on January 23, 2006.

Appellants filed Notices of Appeal with the Court of Common Pleas of Lebanon County (common pleas) on January 27, 2006, challenging the Board's approval of the conditional use application. Wal-Mart timely intervened in the appeals, but did not appeal the imposition of any of the conditions imposed by the Board. Common pleas issued two opinions*fn3 on April 5, 2007, and December 19, 2007, upholding the Board's decision and denying Appellants' land use appeals. This appeal followed.*fn4

I. DOES A CHANGE IN THE BOARD'S MEMBERSHIP BEFORE ISSUANCE OF A WRITTEN DECISION INVALIDATE A PRIOR VOTE?

A. What is the final decision of the Board?

Appellants assert that the December 28, 2005 vote was not the final decision of the Board, but rather that the January 23, 2006 written decision constituted the Board's final decision because it was in writing. Further, Appellants assert that because the January 23, 2006 written decision was issued when Supervisor Brooks was no longer a member of the Board, that the decision reflected a 1-1 vote instead of a 2-1 vote. Thus, we determine whether the vote conducted at the December 28, 2005 meeting or the written decision issued on January 23, 2006, constituted the final decision of the Board. The Pennsylvania Municipalities Planning Code*fn5 (MPC) requires that a governing body ruling on a conditional use application must render a written decision within 45 days after the last hearing before the governing body.*fn6 Section 913.2(b)(1) of the MPC, added by Act December 21, 1988, P.L. 1329, 53 P.S. §10913.2(b)(1).

In order to determine the outcome of this issue, we consider both Section 913.2(b)(1) of the MPC, 53 P.S. § 10913.2(b)(1), and the Pennsylvania Sunshine Act. Section 705 of the Sunshine Act requires that:

[i]n all meetings of agencies, the vote of each member who actually votes on any resolution, rule, order, regulation, ordinance or the setting of official policy must be publicly cast and, in the case of roll call votes, recorded.

65 Pa. C.S. § 705. Section 703 of the Sunshine Act defines "official action" as:

(1) Recommendations made by an agency pursuant to statute, ordinance or executive order.

(2) The establishment of policy by an agency.

(3) The decisions on agency business made by an agency.

(4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order.

65 Pa. C.S. § 703. In addition, the Sunshine Act requires that official action and deliberations must take place at a meeting open to the public. 65 Pa. C.S. § 704.

In Pae v. Hilltown Township Zoning Hearing Board, 385 A.2d 616 (Pa. Cmwlth. 1978), the landowners asserted that the oral decision made at a zoning hearing board meeting was not the formal action required by the Sunshine Act because Section 908(9) of the MPC requires a written decision. This court rejected landowners' contentions. Further, a decision of the zoning hearing board issued in writing but not publicly announced is invalid. Bruno v. Zoning Bd. of Adjustment, 664 A.2d 1077, 1079 (Pa. Cmwlth. 1995) [citing Skopic v. Zoning Hearing Bd. of Hemlock Twp., 471 A.2d 123 (Pa. Cmwlth. 1984)]. In Bruno, this court held that where the Philadelphia Zoning Board of Adjustment orally voted to deny a use variance, but the board erroneously issued a notice that the use variance was granted, the oral vote of the board constituted a valid adjudication. Bruno, 664 A.2d at 1079.

Further, Zoning Ordinance § 20.7.C.2 provides that the Board must render a final decision within 30 days after the adjournment of the public hearing and that the solicitor must correspond with the applicant in writing within 15 days following the final decision informing the applicant of the decision. Section 20.7.C.2 also states that the decision of the Board shall be accompanied by findings of fact and the conclusions based thereon. Thus, § 20.7.C.2 contemplates that the final decision of the Board is something different than the written decision issued by the Board.

In addition, the MPC requires that a governing body render a written decision within 45 days. The 45 day requirement is meant to ensure that applicants do not suffer undue delay at the hands of a governing body. Section 913.2(b)(2) of the MPC provides a remedy for applicants when the governing body fails to issue a written ...


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