AUUE, Inc. v. Borough of Jefferson Hills ZHB v. Borough of Jefferson Hills & Residents of Jefferson Hills ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
AUUE, Inc., :
Appellant :
:
v. : No. 871 C.D. 2020
: SUBMITTED: May 13, 2021
Borough of Jefferson Hills :
Zoning Hearing Board :
:
v. :
:
Borough of Jefferson Hills and :
Residents of Jefferson Hills :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: August 9, 2021
Appellant AUUE, Inc. (AUUE) appeals from the Court of Common Pleas of
Allegheny County’s (Trial Court) August 10, 2020 order,1 through which the Trial
Court affirmed the Borough of Jefferson Hills Zoning Hearing Board’s (Board)
October 24, 2019 decision. Appellee Residents of Jefferson Hills (Residents)
prompted the Board’s decision by challenging the Borough zoning officer’s issuance
of a zoning permit to AUUE, which pertains to a development project that AUUE
desires to undertake in the Borough. Specifically, the Board determined that AUUE
1
The order is dated August 7, 2020, as is the opinion to which it is attached; however, both
the order and opinion were not docketed until three days later.
did not have permission by right under the Borough’s Zoning Ordinance2 to
construct a medical center3 and that, as such, the zoning officer had erred in granting
the sought-after zoning permit. After thorough review, we reverse the Trial Court.
I. Facts and Procedural History
On August 27, 2018, AUUE filed a zoning permit application (Zoning
Application) with the Borough for a proposed development called UPMC South, a
medical center that would consist of “a [h]ospital, [a] [m]edical [c]linic, [m]edical
[p]rofessional [o]ffices[,] and a [h]elipad as an [a]ccessory [u]se.” Board’s Decision,
Findings of Fact (F.F.) ¶¶5-6; Trial Ct. Record (T.C.R.) at 2713.4 Though this Zoning
Application contained the description “Application for Temporary or Final Zoning
Approval for Occupancy and Use And Certification of Use and Occupancy[,]”
AUUE also made clear therein that the “[Zoning] Application [was] only for zoning
approval and not for occupancy.” T.C.R. at 2713. The UPMC South development
involves five contiguous parcels of land, all of which are owned by AUUE: Lot 600-
L-67, which is partially zoned O-P, i.e., office park, and partially zoned C-1, i.e.,
commercial; Lot 767-D-375, which is entirely zoned O-P; Lot 660-S-40, which is
partially zoned R-1, i.e., residential, and partially zoned O-P; Lot 767-G-200, which
is entirely zoned R-1; and Lot 767-H-14, which is also entirely zoned R-1. Board’s
2
Borough of Jefferson Hills Zoning Ordinance, Allegheny County, Pa., as amended
(2000), available at https://www.jeffersonhillsboro.org/ZoningOrdinance.aspx (last accessed
August 6, 2021).
3
“Medical center” is defined in the Borough’s Zoning Ordinance as “[a] development
comprised of two (2) or more of the following uses: medical clinic, medical professional offices,
medical research facility, nursing home or hospital.” Zoning Ordinance § 102.2. None of the
parties dispute that UPMC South, as proposed, falls within the parameters of this definition.
4
AUUE is a wholly owned subsidiary of the University of Pittsburgh Medical Center, a
healthcare provider better known by the acronym UPMC. Board’s Decision, F.F. ¶6.
2
Decision, F.F. ¶¶1-3; T.C.R. at 2714. The five parcels are treated as separate
properties under the Borough’s Zoning Ordinance. This separate treatment would
change only if AUUE elected to “redefine the lots” by submitting a subdivision plan
or lot unification plan to the Borough and having that plan approved. Id. ¶¶3-4.
The Zoning Application, as summarized by the Board, describes UPMC
South’s particulars as follows. The medical center would be situated entirely within
the O-P portion of Lot 600-L-67, while accessory parking lots would be located on
Lots 767-D-375 and 660-S-40. Id. ¶¶8-13. It is not clear whether the parking lot
proposed for Lot 660-S-40, which would be used by UPMC South staffers, would
be entirely in the section zoned O-P. While AUUE indicated that this would be the
case, the Zoning Application does not show where the boundary line lies between
the portions of this parcel respectively zoned O-P and R-1. Id. ¶12. Thus, it is
possible that the parking lot either spills over into the R-1 region or is not situated
far enough from the area zoned R-1. Id. In addition, a gated access road would cross
Lot 767-D-375, which would connect with a nearby artery known as Practice T
Drive. Id. ¶13. Finally, the Zoning Application does not call for any development on
either Lot 767-G-200 or Lot 767-H-14, although Practice T Drive crosses both
properties. As such, “Practice T Drive . . . could be used as an access road . . . [that]
connect[s on these properties] to the [g]ated [a]ccess [d]rive” and establishes a road
link over that route to the aforementioned staff parking lot. Id. ¶14.
The Borough then spent roughly the next two months reviewing the Zoning
Application. On October 1, 2018, the Borough’s zoning officer contacted AUUE,
informing it that he “required corrections, clarifications[,] or additional information”
regarding multiple portions of the Zoning Application. Id. ¶16. In response, AUUE
submitted additional information to the zoning officer on October 11, 2018. Id. ¶¶17-
3
18. The Borough’s planning consultant then “requested additional information
regarding parking count documentation” from AUUE on October 19, 2018. Id. ¶19.
AUUE sent revised plans with this additional information for UPMC South to the
Borough’s zoning officer on October 25, 2018. Id.
On October 31, 2018, the Borough’s zoning officer notified AUUE via letter
that he had approved its Zoning Application. Id. ¶20; Reproduced Record (R.R.) at
366a. As stated by the zoning officer:
This approval applies to ZONING ONLY and shall not
relieve [AUUE] from obtaining other such approvals and
permits as may be required by Borough [o]rdinance
including, but not limited to, those identified below.
Further, the issuance of this [zoning] permit is conditioned
specifically on the following:
- The MEDICAL CENTER use (comprised of
hospital, medical clinic, and medical
professional offices), with a helipad as an
accessory use, is approved for the parcels
indicated on the [zoning] permit, within the O-P
Office Park Zoning District.
- No development activity may occur on the site
until [AUUE has] secured approval for land
development from the Borough.
- Issuance of this zoning permit does not relieve
[AUUE] of any requirements of the Borough[’s]
Zoning Ordinance as part of the land
development application review process
required by the Borough[’s] Subdivision and
Land Development Ordinance.
- No grading or earthwork activity may occur on
the site until [AUUE] secures a grading permit
or land development approval from the Borough.
- No building construction may occur until
[AUUE] secures a building permit from the
Borough.
- This [zoning] permit shall expire twelve months
from the date of issuance as indicated by the date
of this letter, above.
4
R.R. at 366a.
The Residents appealed the zoning officer’s decision to the Board on
November 19, 2018. The Board then held 11 hearings over the course of roughly 10
months and, on October 24, 2019, granted the Residents’ appeal. The Board offered
three justifications for its decision. First, it acknowledged that a medical center is a
by-right use for properties zoned O-P, per Section 701.1.a of the Zoning Ordinance;
however, the Board stated that Section 701.1.a had to be construed along with the
Zoning Ordinance’s relevant statement of intent, in Section 700, as well as the
community development objectives from the Borough’s 1997 Comprehensive Plan,
which were incorporated by reference through Section 101.3. Board’s Decision,
Discussion and Conclusions of Law (C.L.), § 1. In addition, the Board noted that a
facility known as Jefferson Hospital is situated on land currently zoned O-P, but had
initially been allowed as a conditional use under its property’s previous R-1 zoning
designation. Id. Taking all of this into account, the Board concluded that Section
701.1.a had been intended “to bring the existing Jefferson Hospital into the full
conformity with the Ordinance as a use by right,” and to allow for development that
was “ancillary” to Jefferson Hospital, but does not serve to authorize new hospitals
or medical facilities by right on land zoned O-P. Id. Furthermore, the Board reasoned
that land zoned O-P is not suitable for “high-intensity uses[,]” like that proposed by
AUUE for UPMC South, and stated that this determination was supported by the
particulars of the 1997 Comprehensive Plan, as well as by testimony that had been
offered at the Board’s hearings by several former Borough officials. Id.
Second, the Board noted that the Borough’s zoning officer had testified that
he considered the permit he had approved to merely be a “use permit,” in that it only
served to recognize that AUUE was allowed by right to build a medical center on
5
land zoned O-P. Id. § 3. In addition, the Board highlighted the zoning officer’s
acknowledgement that the Zoning Application did not fully satisfy the strictures of
the Borough’s Zoning Ordinance, as well as that “he [had] maintained that he did
not consider [this] in making his decision to issue the [z]oning [p]ermit.” Id.
Consequently, the Board concluded that the zoning officer had violated both Section
614 of the Pennsylvania Municipalities Planning Code (MPC)5 and Section 1201.2
of the Borough’s Zoning Ordinance, both of which articulated the scope of the
zoning officer’s duties and powers. Id. The Board stated that
[t]here is no specific authorization in the MPC or the
Zoning Ordinance for the [z]oning [o]fficer [to] issue a
[u]se [p]ermit that would be conditioned on [an a]pplicant
later complying with the provisions of the Zoning
Ordinance, in this case through the land development
process.
....
The zoning issues relative to [AUUE’s p]ermit
[a]pplication . . . should have been resolved by the
[z]oning [o]fficer on his full review of the [permit
a]pplication. If there were issues resolving compliance
with provisions of the Zoning Ordinance, the [z]oning
[o]fficer should have rejected the issuance of the [z]oning
[p]ermit until such issues were corrected by . . . AUUE . .
. whether through submitting a sub-division plan, altering
[its] plans, seeking variances and/or conditional uses for
the portions of it[s] plans in which zoning issues had not
been resolved.
Id.
Finally, the Board determined that the Residents had identified multiple ways
in which the Zoning Application failed to comply with the Zoning Ordinances, each
of which served as a basis for denying the application. Id. § 4. These were as follows:
5
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329, 53 P.S. § 10614.
6
portions of the gated access drive traverse land zoned R-1, in violation of Section
201.1; the parking lots proposed for Lots 767-D-375 and 660-S-40 constitute
accessory uses without a primary use on those lots, in violation of Section 102.2; no
parking spaces would be situated along with the medical center on Lot 600-L-67, in
violation of Section 902.6.a.9, which requires such spaces to be located on the same
lot as a development’s principal use; and Lots 660-S-40, 767-D-375, 767-G-200,
and 767-H-14 would not have direct access to a collector or arterial road, in violation
of Section 701.3. Id. § 4-4(D).6 While noting that some of these deficiencies could
potentially be cured through a revised development plan, the subdivision and land
use process, or by obtaining variances, the Board nonetheless concluded that the
zoning officer should have deemed them fatal to the Zoning Application, instead of
issuing what amounted to an advisory opinion. Id. §§ 3-4(D).
AUUE then appealed the Board’s decision to Trial Court, which took no
additional evidence and affirmed the Board on August 10, 2020. In doing so, the
Trial Court deferred to the Board’s interpretation of the Zoning Ordinance and
concluded that the Board had properly determined that AUUE was not permitted by
right to build its desired medical center. Trial Ct. Op., 8/10/20, at 3-5. The Trial
Court considered this conclusion to be entirely dispositive and, as such, declined to
substantively address any other issues that had been raised by AUUE. Id. at 5.
In response, AUUE filed the instant appeal with our Court.
6
The Board also noted that, per Section 201.2 of the Zoning Ordinance, a hospital is
required to have side yard and rear yard setbacks from adjacent residential properties of at least
200 feet; in the Board’s estimation, it was “likely” that the location of the gate access drive would
fall “well within the 200 foot buffer [area]” and would thus be out of compliance with this
requirement. Board’s Decision, C.L. § 4(A).
7
II. Discussion7
AUUE raises three overarching arguments for our consideration, which we
summarize as follows. First, the Trial Court erred when it affirmed the Board’s
decision, as the Board incorrectly determined that AUUE’s proposed medical center
was not a by-right use. AUUE’s Br. at 14-24. Second, the Trial Court erred by failing
to address AUUE’s contention that several of the Board’s factual findings were not
supported by substantial evidence, namely that: (a) there was a dispute as to whether
the proposed helipad was a valid accessory use; (b) the staff parking lot on Lot 660-
S-40 was possibly located, in part, on land zoned R-1 or was not the required distance
from such land; and (c) the gate for the gated access drive was located on land zoned
R-1. Id. at 24-29. Finally, the Trial Court mistakenly failed to address AUUE’s
claims that: (a) the Board erred by addressing concerns that were outside the scope
of the issue before it, i.e., whether the zoning officer had properly determined that
AUUE’s proposed medical facility was an authorized use by right, and (b) the Board
improperly deemed the zoning officer’s approval of AUUE’s Zoning Application to
be an advisory opinion. Id. at 30-33.
We begin with the question of whether the Zoning Board correctly determined
that, per the Borough’s Zoning Ordinance, AUUE’s proposed medical facility did
not constitute a by-right use. It is well settled that “[t]he interpretation of a zoning
ordinance is a question of law.” THW Grp., LLC v. Zoning Bd. of Adjustment, 86
7
“[O]ur standard of review in a zoning case, where the [c]ourt of [c]ommon [p]leas has
taken no additional evidence, is limited to determining whether the zoning hearing board abused
its discretion or committed an error of law. . . . An abuse of discretion will be found only if the
zoning board’s findings are not supported by substantial evidence[.]” Zoning Hearing Bd. of
Sadsbury Twp. v. Bd. of Sup’rs of Sadsbury Twp., 804 A.2d 1274, 1278 (Pa. Cmwlth. 2002)
(internal citation omitted). “By ‘substantial evidence’ we mean such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Valley View Civic Ass’n v.
Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983) (citations omitted).
8
A.3d 330, 336 (Pa. Cmwlth. 2014). As such, though we must accord “great weight
and deference” to the Board’s interpretation of the Borough’s Zoning Ordinance,
River’s Edge Funeral Chapel & Crematory, Inc. v. Zoning Hearing Board of
Tullytown Borough, 150 A.3d 132, 139 (Pa. Cmwlth. 2016), “our standard of review
is [nonetheless] de novo and our scope of review is plenary.” Gorsline v. Bd. of
Supervisors of Fairfield Twp., 186 A.3d 375, 385 (Pa. 2018).
Like statutes, the primary objective of interpreting
ordinances is to determine the intent of the legislative body
that enacted the ordinance. See 1 Pa. C.S. § 1921; Bailey
v. Zoning Bd. of Adjustment of City of Phila., . . . 801 A.2d
492 ([Pa.] 2002); Malt Beverages Distribs. Ass’n v. Pa.
Liquor Control Bd., 918 A.2d 171 (Pa. Cmwlth. 2007) (en
banc), aff’d, . . . 974 A.2d 1144 ([Pa.] 2009). In pursuing
that end, we are mindful that a statute’s plain language
generally provides the best indication of legislative intent.
Id. Thus, statutory construction begins with examination
of the text itself. Id.In reading the plain language of a statute, “[w]ords and
phrases shall be construed according to rules of grammar
and according to their common and approved usage.” 1 Pa.
C.S. § 1903(a). Further, every statute shall be construed, if
possible, to give effect to all its provisions so that no
provision is “mere surplusage.” 1 Pa. C.S. § 1921(a).
Where the words in an ordinance are free from all
ambiguity, the letter of the ordinance may not be
disregarded under the pretext of pursuing its spirit. 1 Pa.
C.S. § 1921.
Thus, if we determine the ordinance provision at issue is
unambiguous, we must apply it directly as written.
Bowman v. Sunoco, Inc., . . . 65 A.3d 901 ([Pa.] 2013); see
1 Pa. C.S. § 1921(b). However, if we deem the language
of the ordinance ambiguous, we must then ascertain the
legislative body’s intent by statutory analysis, wherein we
may consider numerous relevant factors. Id. An ambiguity
exists when language is subject to two or more reasonable
interpretations and not merely because two conflicting
interpretations may be suggested. Adams Outdoor Adver.,
9
L.P. v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d
469 (Pa. Cmwlth. 2006).
Further, “[w]hile it is true that zoning ordinances are to be
liberally construed to allow the broadest possible use of
land, it is also true that zoning ordinances are to be
construed in accordance with the plain and ordinary
meaning of their words.” Zappala Grp., Inc. v. Zoning
Hearing Bd. of Town of McCandless, 810 A.2d 708, 710
(Pa. Cmwlth. 2002).
Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 509-10 (Pa.
Cmwlth. 2014). Likewise, it is
[g]enerally [the case that] a zoning ordinance should be
construed in a manner that does not, by mere implication,
fetter a landowner’s reasonable use of his land. Thus, the
permissive nature of an ordinance provision should be
taken in its broadest sense and restrictive provisions
should be construed in the strictest sense. . . . However,
this rule of construction yields where the intent of the local
legislative body can be discerned with the aid, if
necessary, of the usual interpretational tools, such as
looking to the structure of the ordinance as a whole to
ascertain legislative intent.
Hess v. Warwick Twp. Zoning Hearing Bd., 977 A.2d 1216, 1221-22 (Pa. Cmwlth.
2009) (internal citations omitted).
With these precepts in mind, we conclude that the Board committed an error
of law when it determined, despite the Zoning Ordinance’s plain language, that
AUUE was not allowed by right to build a medical center on land zoned O-P. As
noted above, the Board specifically relied upon three portions of the Zoning
Ordinance to support its logic: Section 701.1.a, Section 700, and Section 101.3. The
first, which specifically addresses uses that are allowed by right on O-P zoned
properties, reads in pertinent part:
Uses by Right
In any O-P District, the land, buildings or premises shall
be used by right only for one or more of the following:
10
1. Principal Uses:
....
(e) Hospital
....
(g) Medical Center
....
Zoning Ordinance § 701.1.a. The second articulates the Borough’s broader desires
for how O-P zoned land should be used:
Statement of Intent
In addition to the general goals of the [Zoning
Ordinance’s] preamble, the districts established in these
regulations are intended to achieve the following:
To encourage the development of medical offices, medical
clinics and diagnostic centers ancillary to the Jefferson
Hospital;
To encourage other businesses and professional offices
and supporting services in a campus style setting with
protections for adjoining residentially zoned properties;
and
To provide a compatible zoning classification to serve as
a transition between residential properties and commercial
properties in locations accessible to the regional highway
network.
Id. § 700. The third ties the Zoning Ordinance to the Borough’s 1997 Comprehensive
Plan:
Community Development Objectives
The zoning regulations and districts set forth in this
[Zoning] Ordinance are made in accordance with the 1997
Comprehensive Plan Update for the Borough . . . , and the
Community Development Objectives of that Plan are
hereby incorporated by reference. In addition, to protect
the general welfare of the Borough, this [Zoning]
Ordinance is intended to achieve, among others, the
following purposes:
11
To lessen congestion in the streets, to secure safety from
fire and other dangers, to provide adequate light and air, to
prevent the overcrowding of the land, avoid undue
concentrations of population, to facilitate adequate
provisions for transportation, water, sewerage, schools,
parks and other public requirements, as well as the
conservation of the value of land and buildings. These
were made with reasonable consideration, among other
things of the existing character of the various areas, their
respective suitability for particular land uses and with a
view to conserving the value of buildings and encouraging
the most appropriate use of land throughout the Borough[.]
Id. § 101.3. The 1997 Comprehensive Plan’s relevant goal and objectives, which are
incorporated into the Zoning Ordinance through Section 101.3, are articulated as
follows:
Goal: Recognize the importance of the Jefferson . . .
Hospital to the Borough’s economic base and encourage
medical related development in the future.
Objectives: Create a new O-P, Office Park, District to
encourage medical offices, research, clinics and similar
facilities in a campus-like atmosphere with design
requirements that provide protections for adjacent
residential areas.
Identify existing developed and future development sites
for the new O-P District and offer economic incentives for
their development and expansion.
1997 Comprehensive Plan at 60; T.C.R. at 2829. Furthermore, we must note two
other parts of the Zoning Ordinance. First, Section 102.1, which makes clear that,
for purposes of interpreting the Zoning Ordinance, “[t]he singular number includes
plural and the plural the singular.” Zoning Ordinance § 102.1. Second, Section
101.5, which, like Section 101.3, deals with the connection between the 1997
Comprehensive Plan and the Zoning Ordinance:
Relationship to the Comprehensive Plan
This [Zoning] Ordinance is adopted to promote an orderly
plan of development according to the Borough’s adopted
12
Comprehensive Plan, including data on existing
conditions, statements concerning the proposed plan and
evaluations of implementation techniques. Such materials
shall be considered as legislative history and shall be
utilized when necessary to establish policy in the
interpretation of this [Zoning] Ordinance.
Id. § 101.5.
These provisions, when read together, lead us to several conclusions. First,
medical centers are unambiguously authorized as a by-right use in the Borough on
properties zoned O-P. Second, though both the 1997 Comprehensive Plan and the
Zoning Ordinance encourage development that is ancillary to the existing Jefferson
Hospital, the wording that is used therein does not expressly prohibit the
construction of other hospitals or medical centers within O-P areas. Third, as the
singular and the plural are interchangeable for purposes of the Zoning Ordinance’s
terms, neither “Hospital” nor “Medical Center,” as used in Section 701.1.a, can be
interpreted as authorizing only a single hospital or medical center in the Borough’s
O-P districts. Fourth, the “materials” referenced in Section 101.5 cannot be used to
interpret the policy intent behind the Zoning Ordinance in this instance, as the plain
language of the Zoning Ordinance both controls and establishes the by-right nature
of medical facilities. As we have made clear in the past,
a zoning board is not a legislative body, and it lacks
authority to modify or amend the terms of a zoning
ordinance. Hill v. Zoning Hearing Bd. of Maxatawny Twp.,
597 A.2d 1245, 1251 (Pa. Cmwlth. 1991). “[Z]oning
boards . . . must not impose their concept of what the
zoning ordinance should be, but rather their function is
only to enforce the zoning ordinance in accordance with
the applicable law.” Ludwig v. Zoning Hearing Bd. of Earl
Twp., 658 A.2d 836, 838 (Pa. Cmwlth. 1995) (quoting In
re Kline Zoning Case, . . . 148 A.2d 915, 916 ([Pa.] 1959)).
Thus, [a zoning b]oard is required to apply the terms of [a
z]oning [o]rdinance as written rather than deviating from
those terms based on an unexpressed policy.
13
Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg Twp., 918 A.2d
181, 187 (Pa. Cmwlth. 2007). Consequently, the Board erred by ignoring the actual
wording of the Zoning Ordinance and by instead inferring that the proposed primary
use for UPMC South, i.e., a medical facility, was barred by implication.
Furthermore, the Board should have limited its review to the question of
whether that use was allowed by right, instead of straying farther afield into broader
concerns about the Zoning Application’s overall compliance with the Zoning
Ordinance.8 As noted above, the Board identified four separate Zoning Ordinance
violations present in the Zoning Application: (1) the gated access drive
impermissibly crosses R-1 zoned land; (2) parking lots are situated as an accessory
use on parcels without a primary use; (3) no parking spaces are provided on the same
parcel as the medical center; and (4) four parcels within the proposed UPMC South
development do not have direct access to a collector or arterial road. Board’s
Decision, C.L. § 4-4(D). AUUE does not necessarily dispute that the violations exist;
rather, it claims that the Board did not have jurisdiction to consider these concerns,
because the only issue properly before the Board was whether the zoning officer
correctly concluded that AUUE’s proposed medical center was a use allowed by
right. AUUE’s Br. at 30-33. According to AUUE, the identified violations “are not
relevant to the use approval and are only properly raised during the land development
process. These [violations relate to] site features that will be addressed by the
8
The Trial Court did not address this issue, due to the fact that it (incorrectly) affirmed the
Board on the basis that the Board had correctly determined that AUUE’s proposed medical facility
was not an authorized by-right use. See Trial Ct. Op., 8/10/20, at 3-5. Even so, the Trial Court’s
error does not stand as an impediment to our ability to address that issue. This is for two reasons:
first, as mentioned supra, it is the Board’s decision, rather than the Trial Court’s, which we are
inspecting for abuses of discretion and errors of law; second, this issue presents a question of law,
for which our “standard of review is de novo and . . . scope of review is plenary.” City of Clairton
v. Zoning Hearing Bd. of City of Clairton, 246 A.3d 890, 897 n.8 (Pa. Cmwlth. 2021).
14
[Borough’s] Planning Commission and the Borough Council and should not have
been a part of these proceedings.” Id. at 33.
We agree with AUUE’s argument that the sole issue properly before the Board
was whether the proposed medical facility was a use allowed by right. This is due to
the breadth of the zoning officer’s authority, as delineated through the MPC and the
Zoning Ordinance. Per Section 614 of the MPC, “[t]he zoning officer shall
administer the zoning ordinance in accordance with its literal terms, and shall
not have the power to permit any construction or any use or change of use which
does not conform to the zoning ordinance.” 53 P.S. § 10614 (emphasis added).
Similarly, Section 1201.1.a of the Zoning Ordinance describes the zoning officer’s
duties, in relevant part, as being “1. To enforce the provisions of this Ordinance; . .
. [and] 3. To issue permits only for construction and uses which are in accordance
with the regulations of this Ordinance and other applicable ordinances as may
be subsequently amended[.]” Zoning Ordinance § 1201.1.a (emphasis added). In
addition, Section 1201.2 of the Zoning Ordinance states that “[t]his Ordinance shall
be enforced by the [z]oning [o]fficer[.] . . . No permit of any kind as provided for in
this Ordinance shall be granted for any purpose except in compliance with the
provisions of this Ordinance or a decision of the . . . Board or an [o]rder of the
[c]ourt.” Id. § 1201.2.
Reading this statutory and ordinance language together, and applying it to the
matter before us, we conclude that the Borough’s zoning officer has the power to
issue a use permit. Both the MPC and the Zoning Ordinance establish that a zoning
officer can dispense permits relating to construction on a property, as well as ones
relating to a property’s use. See 53 P.S. § 10614; Zoning Ordinance §§ 1201.1.a,
1201.2. As such, the Borough’s zoning officer may issue a permit recognizing that
15
a piece of land may be used in a certain, Zoning Ordinance-compliant way, even if
that permit does not actually authorize the applicant to commence development or
resolve all extant zoning matters. Here, the Zoning Application related solely to
gaining governmental approval of AUUE’s desired use, but did not pertain to the
larger concern of whether the UPMC South development, as proposed, complied
with all portions of the Zoning Ordinance. See T.C.R. at 2713. As such, the Board
incorrectly concluded that the Borough’s zoning officer could not grant a use permit
to AUUE and erroneously delved into broader concerns beyond whether the zoning
officer properly concluded that the proposed use was allowed by the Zoning
Ordinance.
III. Conclusion
In light of the foregoing analysis, we reverse the Trial Court’s August 10,
2020 order.
__________________________________
ELLEN CEISLER, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
AUUE, Inc., :
Appellant :
:
v. : No. 871 C.D. 2020
:
Borough of Jefferson Hills :
Zoning Hearing Board :
:
v. :
:
Borough of Jefferson Hills and :
Residents of Jefferson Hills :
ORDER
AND NOW, this 9th day of August, 2021, it is hereby ORDERED that the
Court of Common Pleas of Allegheny County’s August 10, 2020 order is
REVERSED.
__________________________________
ELLEN CEISLER, Judge