Agenda - Planning Commission - 07/09/2015

Home

Zoning Bulletin June 10, 2015 1 Volume 9 1 Issue 11 appellate review. It also addressed whether landowners had established a right to a variance. The Background/Facts: Anh Pham and Roland W. Muller (the "Pham-Mullers") owned a circa 1904 6,000 -square -foot single-family home in an R-1 Residential District in Upper Merion Township, Pennsylvania (the "Township"). The Pham-Mullers wanted to use the property as a "Bed and Breakfast" ("B & B"). They applied to the Township's Zoning Hearing Board ("ZHB") for a variance. In support of their variance application, the Pham-Mullers asserted, among other things, that the property's unique size and older age made it functionally obsolete, creating an unnecessary hardship. They noted, for example, that it annually cost $20,000 for them to supply heat and hot water to the home. Ultimately, the ZHB members voted two in favor and two opposed to the Pham-Mullers' request for a variance. The ZHB detetinined that the tie vote rendered the request denied, pursuant to § 906 of the Pennsylva- nia Municipal Planning Code ("MPC"). Section 906 provides that, for the taking of any action, there must be a majority quorum of all members of the board. The Pham-Mullers appealed to the trial court, which affirmed the ZHB's decision. The Pham-Mullers again appealed. On appeal, they argued, among other things, that: (1) the ZHB's decision was inadequate for the purposes of effective appellate review because the ZHB's decision failed to include specific credibility determinations and adequate legal analysis and/or reasons for the denial; and (2) the ZHB abused its discretion in denying their variance because the Pham-Mullers provided sufficient ev- idence to establish their right to a variance. DECISION: Judgment of Court of Common Pleas affirmed. The Commonwealth Court of Pennsylvania first held that the ZHB's tie -vote decision was adequate for purposes of appellate review. The court explained that a timely action by a zoning board which is reduced to writing, though it may not alter the status quo, is materially different from a lack of timely action that would warrant a deemed approval under § 908 of the MPC. Here, noted the court, the action by the ZHB was timely made, but it was one by an evenly -divided board. Under § 906 of the MPC, a zoning hearing board lacks authority to act other than by a majority, said the court. Thus, the court explained, the result of a zoning hearing board's tie vote is that the subject -matter with which it is deal- ing must remain status quo. Therefore, here, "[w]hether the zoning hear- ing board's action, memorialized in writing, be treated as one by an evenly -divided appellate tribunal (thus leaving in effect the negative administrative response which the landowner had appealed to the board) or as an original administrative response leaving a direct application unimplemented, the result is a refusal of the landowner's request." © 2015 Thomson Reuters 3