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Harry C. Ulsh v. Zoning Hearing Board of Lower Paxton Township and

April 26, 2011

HARRY C. ULSH
v.
ZONING HEARING BOARD OF LOWER PAXTON TOWNSHIP AND TRIPLE CROWN CORPORATION APPEAL OF: TRIPLE CROWN CORPORATION



The opinion of the court was delivered by: Johnny J. Butler, Judge President Judge Leadbetter dissents.

Argued: March 8,2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE JOHNNY J. BUTLER, Judge (P.) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY

JUDGE BUTLER

Triple Crown Corporation (TCC) appeals from the June 25, 2010 order of the Court of Common Pleas of Dauphin County (trial court) denying its petition for judgment of non pros and reversing the deemed approval of a variance by the Zoning Hearing Board (ZHB) of Lower Paxton Township (Township) in light of this Court's holding in Snyder v. Lower Paxton Township and Triple Crown Corporation (Pa. Cmwlth. No. 983 C.D. 2008, filed January 28, 2009). The issues for this Court's review are: (1) whether the trial court erred as a matter of law by failing to grant TCC's petition for judgment of non pros; (2) whether the trial court denied TCC's due process rights by rendering a decision on the merits of Harry C. Ulsh's (Ulsh) land use appeal during the hearing to address the request for non pros; (3) whether the trial court erred as a matter of law by failing to schedule and/or conduct a separate de novo hearing on Ulsh's appeal before reversing the deemed approval of the variance; (4) whether the trial court erred by failing to make substantive findings of fact to support its decision to reverse the deemed approval of the variance; (5) whether the trial court erred by concluding that Ulsh's land use appeal is directly controlled by Snyder; and, (6) whether the trial court erred by interpreting Snyder to support its conclusion that TCC is not entitled to any approval. For the reasons that follow, the portion of the trial court's order denying TCC's petition for judgment of non pros is affirmed. The portion of the trial court's order rendering a decision as to the merits of deemed approval is vacated, and this matter is remanded to the trial court for proceedings consistent with this Opinion.

This matter presents a significant procedural history. TCC was seeking to develop 492 residential units (consisting of single-family homes, townhouses and condominiums) on a 246-acre parcel of currently-undeveloped land. Pursuant to the Township's ordinance, as a result of the topography of the land in question, only 374 residential units may be developed on the subject property.*fn1 Therefore, in order to construct the additional units on the property, TCC sought a variance from the Township.

On March 31, 2006, TCC applied for a variance to construct the 492 units (First Variance Application). A hearing was held on April 27, 2006. Township resident, Harry C. Ulsh, attended the hearing and opposed TCC's variance application. At the hearing, the ZHB voted to deny the application. The ZHB failed, however, to mail a written decision denying the variance within 45 days.

On or about June 26, 2006, following rezoning of the area to residential cluster (R-C) by the Board of Supervisors on July 18, 2006, with the approval of the Township's Planning commission, and after significant negotiation between TCC and Stray Winds Area Neighbors (SWAN), TCC again applied to the ZHB for a variance, but for only 449 units (Second Variance Application). This application differed from the first, primarily in that TCC offered to fund significant offsite improvements for the Township at a cost of $1.8 million. A hearing was held on July 27, 2006. Resident, Andrew Snyder, attended the hearing and opposed TCC's application. TCC argued that the additional 75 residential units are necessary in order to offset the $1.8 million in improvements it has promised the Township. On September 7, 2006, the ZHB approved TCC's request for a variance, subject to certain conditions, including that TCC contribute $1.8 million to the Township for offsite public road improvements.

On October 6, 2006, Snyder appealed the ZHB's approval of the Second Variance Application to the trial court, and TCC intervened (Snyder appeal). On November 17, 2006, during the briefing stage of the Snyder appeal, TCC filed a mandamus action against the ZHB and the Township based upon the ZHB's failure to timely issue a written decision denying the First Variance Application, seeking to compel the ZHB to advertise what was by then a deemed approval. The mandamus action was resolved by a settlement agreement entered into between TCC, the ZHB and the Township on September 27, 2007, which required the ZHB give public notice of the deemed approval of the First Variance Application, and limited TCC to developing 449 units, "pursuant to all conditions agreed to by [TCC] and imposed by [the ZHB] in the hearing of July 27, 2006" (for the Second Variance Application). Reproduced Record (R.R.) at 25a.

On October 4, 2007, Snyder filed an application for a status conference in his appeal because nothing had occurred since the briefing was completed on January 19, 2007. He also brought the mandamus action in the First Variance Application to the trial court's attention.

In accordance with the settlement agreement, the ZHB gave public notice of the deemed approval of the First Variance Application in The Paxton Herald on November 7 and 14, 2007. On November 28, 2007, Ulsh filed a timely appeal of the deemed approval of the First Variance Application, and TCC intervened (Ulsh Appeal).*fn2 Ulsh claimed that TCC waived any right to deemed approval of the First Variance Application since it filed and proceeded with the Second Variance Application and, even if it were entitled to a deemed approval, it must be overturned since TCC is unable to meet the elements for grant of the First Variance Application.

In his brief, Ulsh states that, during a December 4, 2007 status conference for the Snyder appeal, counsel representing Snyder (and Ulsh) notified the trial court's law clerk of the Ulsh appeal, and represented that a decision in the Snyder appeal would control the Ulsh appeal. TCC denies the latter occurred. In any event, the trial court did not issue a briefing schedule in the Ulsh appeal.

On May 7, 2008, the trial court issued a decision upholding the ZHB's grant of TCC's Second Variance Application. Snyder appealed to this Court. On January 28, 2009, this Court reversed the grant of the Second Variance Application on the basis that a purely economic hardship arising from TCC's voluntary commitment to upgrade the Township's existing road network was not sufficient to support a finding of unnecessary hardship required for grant of a variance.*fn3

On March 27, 2009, TCC filed a petition for judgment of non pros in the First Variance Application, since no action had taken place relative to that matter since TCC intervened on December 4, 2007 (approximately 15 months earlier). On September 15, 2009, the trial court assigned TCC's petition to Judge Scott Arthur Evans, as he was also involved in Snyder's appeal. On October 9, 2009, Ulsh filed an application for a status conference due to the final nature of this Court's decision in Snyder's appeal. Oral argument on the petition for judgment of non pros was held on November 23, 2009. Thereafter, on January 27, 2010, the trial court held an evidentiary hearing at which TCC presented the testimony of the Township's planning and zoning officer, Dianne Moran, and TCC representative, Mark DiSanto. David E. Lehman, counsel for Ulsh and Snyder, testified on behalf of Ulsh. On ...


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