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Weston v. Zoning Hearing Board of Bethlehem Township

April 27, 2010

RANDALL A. AND REGINA WESTON, APPELLANTS
v.
ZONING HEARING BOARD OF BETHLEHEM TOWNSHIP



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

Submitted: February 12, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Randall A. and Regina Weston (the Westons) appeal from the October 5, 2009, order of the Court of Common Pleas of Northampton County (trial court) that dismissed with prejudice the Westons' appeal from a decision of the Zoning Hearing Board of Bethlehem Township (ZHB) granting Bonita Yoder's request to rent rooms in her home to college students. The trial court determined that the Westons lacked standing to bring the action because they failed to appear before the ZHB to object to Yoder's request. We affirm.

Yoder resides at 3215 Gloucester Drive, in a single-family home located in Bethlehem Township's (Township) Low Density Residential (LDR) District. Yoder rented rooms in her home to college students, but she discontinued the practice after the Township zoning administrator advised her that the use was considered a "boarding house" as defined in the Bethlehem Township Zoning Ordinance (Ordinance) and, thus, was not permitted in the LDR District. Believing that the rental of rooms in her home fit within the Ordinance's definition of "family," a permitted use in the LDR district, Yoder applied to the ZHB for an interpretation of the terms. In accordance with the notice provisions in section 908(1) of the Pennsylvania Municipalities Planning Code (MPC),*fn1 the ZHB issued public notice of its intent to hold a hearing on Yoder's application on January 28, 2009. (R.R. at 31a.) In addition, section 112.A of the Ordinance*fn2 requires that written notice of the scheduled hearing be mailed to property owners within 400 feet of the subject property, and the Westons own property within 400 feet of Yoder's residence.

At the hearing, the ZHB Chairman initially questioned the Township zoning officer regarding compliance with the MPC's public notice requirements. The zoning officer testified that the hearing notice was properly posted, but she admitted that the advertisement of the public notice included a typographical error; specifically, the notice identified Yoder's address as 3214, rather than 3215, Gloucester Drive. (R.R. at 18a.) The ZHB Chairman and the ZHB solicitor agreed that this error was "not fatal." (R.R. at 18a.) Thereafter, in response to questioning by the ZHB solicitor, Yoder's counsel confirmed that individual notice was sent by U.S. mail to property owners within the requisite 400-foot radius of Yoder's residence and that no envelopes were returned as undeliverable. (R.R. at 18a-19a.) With respect to notice of the hearing, the ZHB solicitor marked the following submissions as exhibits: (1) a document entitled "Public Notice," (R.R. at 31a); (2) a U.S. post office form containing the handwritten list of names and addresses of persons to whom individual notice was sent, (R.R. at 32a-38a); (3) a U.S. post office receipt of mailing to these persons, (R.R. at 32a-38a); (4) a Northampton County tax assessment map highlighting the lots neighboring Yoder's property, (R.R. at 39a); and (5) a list obtained from the Northampton County Courthouse providing the names and addresses for the parcels designated on the tax assessment map. (R.R. at 40a-43a.) Satisfied that all notice requirements were met, the ZHB proceeded to consider the merits of Yoder's application. Yoder testified on her own behalf, and no one appeared to object to Yoder's application.

On February 25, 2009, by a vote of three to two, the ZHB issued a written opinion in Yoder's favor. Thereafter, the Westons filed a timely appeal to the trial court, raising both procedural and substantive errors in the ZHB's decision. With respect to the former, the Westons asserted that they did not receive written notice of the ZHB hearing in accordance with section 112.A of the Ordinance, that there was no record evidence to show that the ZHB complied with the public notice requirements in sections 107 and 908(1) of the MPC, 53 P.S. §§10107 and 10908(1), and that the notice was defective on its face because it contained a numerical error. The Westons sought a reversal of the ZHB's decision or, in the alternative, a remand to the ZHB for a rehearing after proper and lawful notice. (R.R. at 1a-7a.)

The ZHB subsequently filed a brief with the trial court, asserting that proper procedure was followed in notifying the public and the neighborhood residents about Yoder's hearing and that the ZHB reached a legally sound decision. In addition, as a threshold matter, the ZHB alleged that the Westons lacked standing to bring the appeal. The ZHB observed that only parties before the ZHB may appeal its decision to the trial court, and, because the Westons did not appear before the ZHB in opposition to Yoder's application, they were not parties as defined in section 908(3) of the MPC, 53 P.S. §10908(3).*fn3

In a responsive brief, the Westons conceded that they did not appear before the ZHB. Nevertheless, they argued that they had standing before the trial court pursuant to section 1002.1-A of the MPC,*fn4 which applies "to all appeals challenging the validity of a land use decision on the basis of a defect in procedures prescribed by statute or ordinance." 53 P.S. §11002.1-A(a). Applying this section, the Westons maintained that, because their absence at the ZHB hearing was due to the Township's failure to strictly comply with the proper procedure regarding notice under the MPC and the Ordinance, the hearing was procedurally defective and the ZHB's decision was void ab initio. (R.R. at 59a-62a.)

The trial court considered these arguments and, on October 5, 2009, issued an Order and Statement of Reasons dismissing the Westons' appeal. As an initial matter, the trial court noted that the Westons presented no new evidence to support their claims of defective notice but, instead, attempted to discredit the existing evidence of record.*fn5

Specifically, the Westons took issue with the exhibits submitted to the ZHB during the hearing. The Westons contended that, although included with the hearing transcript and certified as part of the record on appeal, none of the exhibits were moved into evidence, and, therefore, the only record evidence as to notice was the testimony from the Township zoning officer, the ZHB solicitor and Yoder's counsel, which was insufficient to establish compliance with the requirements in either the MPC or the Ordinance.

With regard to the MPC's requirements, the Westons asserted that the zoning officer admitted that the hearing was not properly advertised due to a typographical error in the public notice. The Westons further maintained that, even if this acknowledged error were "not fatal," the record contained no evidence establishing that the ZHB complied with the timing requirements set forth in section 107 of the MPC, 53 P.S. §10107. As to the Ordinance requirements, the Westons argued that testimony merely representing that individual notice was sent was insufficient to prove compliance. Moreover, the Westons contended that, even if the exhibits were available for consideration, the documents themselves raise a question as to whether notice actually reached the proper individuals where the list of names and addresses are virtually illegible and contain various mistakes. In fact, the Westons claimed that, although they own property within 400 feet of Yoder's residence, they failed to receive notice as required by the Ordinance, rendering the ZHB's decision void.

Rejecting these arguments, the trial court observed that the mailing list was in the record, the list included the Westons, and the list contained no facial defects to support the Westons' claims of non-receipt. The trial court also noted that, while the public notice was defective with respect to the identification of Yoder's address, it otherwise properly identified Yoder and described the matter at issue. In light of the de minimis nature of the error in the public notice, the proof that the notice was mailed to the Westons and the Westons' failure to appear at the ZHB hearing, the trial court held that the Westons were not parties to the Yoder matter under section 908(3) of the MPC, and, therefore, they had no standing to appeal from the ZHB's decision. (R.R. at 67a-71a.) Consequently, the trial court dismissed the Westons' appeal without consideration of the merits. The Westons now appeal to this court.*fn6

There is no question that the Westons were not parties to the ZHB proceedings; however, the Westons argue that the trial court erred by dismissing their appeal for lack of standing on those grounds. The Westons assert that, because they challenge the ZHB's decision on the basis of procedural defects, their standing before the trial court is the person aggrieved standard set forth in section ...


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