Pham v. Upper Merion Township Zoning Hearing Board , 2015 Pa. Commw. LEXIS 157 ( 2015 )

CONCURRING OPINION BY

Judge BROBSON.

Like the majority, I would affirm the November 25, 2013, order of the Court of Common Pleas of Montgomery County (trial court). I agree with the majority that, as a matter of law, the evenly-divided decision of the Upper Merion Township Zoning Hearing Board (ZHB) is treated as a deemed denial of the variance request in this case. See Giant Food Stores, Inc. v. Zoning Hearing Bd. of Whitehall Twp., 93 Pa.Cmwlth. 437, 501 A.2d 353 (1985). At that point, the statutory remedy available to Anh Pham and Roland W. Muller (Appellants) was an appeal under Article X-A of the Pennsylvania Municipalities Planning Code (MPC).¹

I write separately because although the ZHB’s decision complies with Section 908(9) of the MPC, 53 P.S. § 10908(9), inasmuch as it includes “findings of fact and conclusions of law ... with the reasons therefore,” the reason therefore here was based not on matters of witness credibility or evidentiary weight, but on the ZHB members’ inability to reach a majority view on those matters. This the majority acknowledges in its analysis of the first issue (i.ethe legal adequacy of the ZHB’s decision). In analyzing the second issue (ie., the merits of the variance request), however, the majority claims to accede to the ZHB’s “exclusive authority over matters of witness credibility and evidentiary weight” in the absence of a decision by the ZHB that contains credibility determinations and weighs evidence. Pham v. Upper Merion Twp. Zoning Hearing Bd., 113 A.3d 879, 892-93, 893, 2015 WL 1588025 (Pa.Cmwlth.2015). Respectfully, the majority’s analysis of the second issue does not logically follow its analysis of the first. I thus cannot agree with this approach.

This case presents the question of a common pleas court’s standard of review in a land use appeal where there is a deemed denial of a variance request due to an evenly-divided zoning hearing board, and the zoning hearing board’s decision reflects no consensus view on disputed material facts relevant to the applicable legal analysis.² The answer to that question is found in Section 1005-A of the MPC, 53 P.S. § 11005-A, which provides that where the zoning hearing board’s decision does not include the requisite findings of fact, the common pleas court “shall make its own findings of fact based on the record below as supplemented by ... additional evidence, if any.” In essence, the trial court should hear the land use appeal de novo and not under an appellate standard of review,- including deference to the ZHB.³

The trial court’s opinion in this case, affirming the ZHB decision, purports to apply the appellate standard of review found in Section 1005-A of the MPC. Nonetheless, a reading of the trial court’s opinion in its entirety convinces me that the trial court fully reviewed the evidence adduced during the hearing before the ZHB, weighed the evidence based on the arguments of the parties on appeal, applied its own factual findings to the governing law, and rendered an independent judgment that Appellants failed to meet their burden of proof with respect to their request for a variance. The trial court’s decision is supported by substantial evidence and comports with governing law. For this reason, I would affirm the trial court’s November 25, 2013 order.

1 . Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §§ 11001-A to 11006-A.

2 . It is noteworthy that the ZHB decision includes twenty-five separately-numbered findings of fact. The first nine of those findings describe Appellants, their property, and the nature of the proposed project, all matters which do not appear to be in dispute. Findings ten through twenty-four describe witness testimony on the matter of the variance request. Finding twenty-five provides that the ZHB was evenly-divided on the merits of the variance and, therefore, the variance was denied. Like the factual findings, two of the ZHB conclusions of law also merely recount testimony for and against the application for a variance. Accordingly, although the ZHB recounts evidence in its findings and conclusions of law, it makes no findings from that evidence, upon which the trial court could (a) review the record for substantial evidence support, and (b) apply to the legal standard for issuance of a variance to determine whether the ZHB erred as a matter of law.See Marshall v. City of Phila., — Pa.-, 97 A.3d 323, 331 (2014) (setting forth appellate standard of review of a zoning board decision).

3 .To resolve the issue of the adequacy of the ZHB decision for review under the MPC, which Appellants clearly raise before this Court, it is necessary to first determine what standard of review the trial court should have employed.