Posted by: Patricia Salkin | January 9, 2013

PA Commnwlth Court Rules County Court Should have Held its own Evidentiary Hearing Concerning Police Substation

to the City of Aliquippa for its proposed police department substation. The trial court affirmed the Zoning Hearing Board’s (“Board”) determination that the proposed substation was a permitted use and that the City would suffer hardship without a dimensional variance. The Commonwealth Court of Pennsylvania, hearing the appeal, vacated and remanded because the trial court failed to conduct a de novo review of the Board’s approval of the City’s application.

The application was to construct a police department substation on land that the City leased. This substation would have consisted of an enclosed trailer that houses a computer which operates a nearby security camera. The City claimed that the presence of this substation would deter crime, loitering and vandalism in the area. The City Administrator testified that the substation could not meet the current dimensional zoning requirements; in order to comply with the setback requirements, a building could be no more than five feet wide and eighteen feet deep, rendering the property virtually valueless and thereby creating a hardship.

Joseph DeSantis testified against the variance, arguing that the need for a substation could be eliminated by installing wireless cameras. Also, Mr. DeSantis pointed out that the Board had a conflict of interest because two Board members were employed by the School District which was located adjacent to the property and was actually leasing the property to the police department. Marian DeSantis also testified, claiming that the presence of the trailer would adversely affect home values and the character of the neighborhood. These objections were to no avail, however, as the Board issued a deemed approval letter to the City after failing to render a timely decision.

On appeal, the trial judge remanded the case to the Board to provide findings of fact and conclusions of law supporting its decision. The Board complied, citing the impracticality of constructing a usable structure on the property and characterizing the trailer as an administrative office, a use permitted in that zoning district. However, the Board did not address the conflicts of interest, whether the building was a trailer, or the possible adverse affects.

The trial court affirmed the Board’s decision after explaining that its review was limited to whether or not the Board abused its discretion or committed an error of law. The trial court held that its remand order made the record for the trial court’s review. Accordingly, the Board’s decision could not be disturbed on appeal absent a finding of abuse of discretion or lack of substantial evidence.

Although the Landowners posed over a dozen issues for its review, the appellate court did not address the merits of the appeal because it concluded that the Board lacked the authority to act, effectively, in place of the trial court. The City argued that it was proper for the trial court to base its determination on the Board’s findings of fact and conclusions of law after the first appeal. However, Pennsylvania precedent has established that “the proper course in reviewing a deemed approval is for the trial court to make its own findings even if there are zoning board findings in the record.” The court also noted that when a deemed approval occurs, a board’s findings are nullified and the trial court is required to make its own findings. For these reasons, the court concluded that the trial court’s failure to conduct a de novo review of the Board’s deemed approval was improper and vacated the order and remanded the case to the trial court for de novo review.

DeSantis v. Zoning Hearing Bd. Of City of Aliquippa, 53 A. 3d 959 (9/12/2012)

The opinion can be accessed here



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