CAROL STUCKLEY, JANE AND JOHN JOHNSON, GENE EPSTEIN, KRIS RILEY, JOHN MELSKY, RUTH ANN MELSKY-MOORE, OTTO SCHNEIDER, GERTRUDE SCHNEIDER, JAMES DEFALCO, PAM FITZPATRICK, TAYLOR BAUDELEY, LEO FITZPATRICK, RACHEL BAUDELEY, FRANCES BIELSKI, NICK SEIBEL, EDWIN BIELSKI, AND THERESA PARRILLA
ZONING HEARING BOARD OF NEWTOWN TOWNSHIP AND BOARD OF SUPERVISORS OF UPPER MAKEFIELD TOWNSHIP
TOLL BROTHERS, INC., DOLINGTON LAND, LLP, TOLL PA XIII LP, LEO HOLT, Intervenors. APPEAL OF: TOLL BROTHERS, INC, DOLINGTON LAND, LLP, AND TOLL PA XIII LP, Intervenors
Argued September 12, 2012
Appeal from the order of the Commonwealth Court at No. 758 CD 2010 dated March 17, 2011, reconsideration denied May 20, 2011, affirming the order of the Bucks County Court of Common Pleas, Civil Division, at No. 2009-03461-19-5 dated March 25, 2010. Appeal allowed March 6, 2012 at 455 MAL 2011. Trial Court Judge: Susan Devlin Scott, President Judge. Intermediate Court Judges: Bernard L. McGinley, Kevin P. Brobson, JJ, Keith B. Quigley, Senior Judge.
For Leo Hold, INTERVENOR: Tracy Paul Hunt, Esq., Timby Hunt, L.L.C.
For Toll Brothers, Inc., Dolington Land, LLP, and Toll PA XIII LP, APPELLANT: Robert L. Byer, Esq., Christina E. Norland Audigier, Esq., Robert McCarthy Palumbos, Esq., John Elliott Sindoni, Esq., Andrew Ronald Sperl, Esq., Duane Morris LLP; Edward Fell Murphy, Esq., McBride & Murphy.
For Zoning Hearing Board of Newtown Township, APPELLEE: James J. Auchinleck Jr., Esq.; Jeffrey P. Garton, Esq., Begley, Carlin & Mandio, L.L.P.
For Board of Supervisors of Upper Makefield Township, APPELLEE: Matthew James McHugh, Esq.; John Bernard Rice, Esq., Grim, Biehn & Thatcher, P.C.
For Carol Stuckley, et al., APPELLEE: Darrell M. Zaslow, Esq., Walder, Zaslow & Moss, P.C.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE EAKIN. Mr. Justice McCaffery and former Justice Orie Melvin did not participate in the consideration or decision of this case. Mr. Chief Justice Castille and Madame Justice Todd join the opinion. Mr. Justice Saylor files a concurring opinion. Mr. Justice Baer files a concurring opinion in which Mr. Justice Saylor joins.
[621 Pa. 511] MR. EAKIN,
We granted allowance of appeal to determine whether the repeal of an ordinance moots any challenges to that ordinance, whether the Commonwealth Court may issue an opinion on the merits of certain issues where it subsequently remands the case for a determination of mootness on another issue, and whether parties to a hearing can continue a challenge to a zoning ordinance once the original challenger has withdrawn.
[621 Pa. 512] Because " parties to a hearing" are distinct from " party appellants," unless the former have taken steps to become party appellants, we find they cannot continue the challenge. Accordingly, we reverse the decision of the Commonwealth Court permitting parties to the hearing to continue the challenge brought by the original party appellant, and we dismiss the attempted challenge.
On October 25, 2006, Upper Makefield, Wrightstown, and Newtown Townships amended their jointly enacted Joint Municipal Zoning Ordinance No. 1983. Leo Holt, a property owner affected by this amendment, properly appealed to the Zoning Hearing Board of Newtown Township, alleging substantive and procedural defects
in the enactment. As a result, Holt became a " party appellant" pursuant to 53 P.S. § 10913.3.
At the first hearing on Holt's appeal, some neighboring property owners appeared and were designated " parties to the hearing" pursuant to 53 P.S. § 10908(3). See Newtown Township Zoning Hearing Board Findings In re Application of Holt, 3/5/09, at 2. The neighbors called several witnesses to testify at that and subsequent hearings.
On June 6, 2007, before final action on the appeal was taken, Holt withdrew his challenge. Holt being the only party who had filed an appeal, the Board terminated the proceedings. [621 Pa. 513] Following Holt's withdrawal, the Townships repealed Ordinance No. 1983 in its entirety and enacted a new ordinance to cure any prior procedural defects. Ordinance No. 2007 was enacted June 18, 2007.
The ordinance Holt had challenged was reenacted verbatim in Ordinance No. 2007, and the neighbors sought to continue Holt's challenge, filing a writ of mandamus with the trial court, asking it to compel the Board to either continue hearings or render findings on Holt's appeal. On December 11, 2008, the trial court declined to compel the Board to continue the hearings, but ordered it to make written findings on Holt's challenge.
On March 5, 2009, the Board issued findings. Determining the MPC distinguishes party appellants from parties to the hearing, and that the only " party appellant" had withdrawn, the Board found the neighbors did not have the right to continue the challenge. Id., at 2-8. The Board noted none of the individuals attempting to continue the challenge had filed an application as required by the MPC -- in order to pursue the action, a party must " [be] aggrieved M and M file the required written application with reasons[.]" Id., at 3 (emphasis omitted).
The neighbors appealed to the trial court, and Toll Brothers, developing land in the impacted district, intervened. The court reversed the findings of the Board, finding no distinction between party appellants and parties to the hearing, and instructed the Board to permit the neighbors to continue Holt's challenge. Trial Court Opinion, 3/25/10, at 9. Toll Brothers appealed the trial court's order, but subsequently filed an application to dismiss the appeal and vacate the order as moot on the grounds the ordinance challenged by Holt had been repealed and Ordinance No. 2007 had never been specifically challenged. The Commonwealth Court accepted the [621 Pa. 514] application but did not vacate the lower
court's order. Rather, it opted to address the issue of mootness along with the merits.
The Commonwealth Court affirmed the trial court's decision, finding the MPC does not specifically state the rights of parties to the hearing are contingent on the existence of the party appellant remaining in the action. The court also found the repeal and reenactment of the subsequent ordinance, which was substantially the same as the original ordinance, did not render the challenge moot. However, the court remanded to the Board to determine whether the matter was moot in light of a third ordinance, Ordinance No. 2010, enacted June 23, 2010, after Toll Brothers' appeal was filed, which Toll Brothers argued cured the substantive defects originally challenged by Holt. Here, Toll Brothers appeals the decision of the Commonwealth Court.
Toll Brothers argues there was no justiciable case or controversy before the trial court or the Commonwealth Court because Ordinance No. 1983, the subject of the original challenge, had already been repealed. Toll Brothers also argues, because the case was potentially moot pending the remand, the Commonwealth Court's opinion was an improper advisory opinion. In the alternative, Toll Brothers argues, even if we are to find this case was ...