The Borough of Pitcairn v. The Zoning Hearing Bd. of the Borough of Pitcairn & MonJon

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The Borough of Pitcairn v. The Zoning Hearing Board of the Borough of Pitcairn and MonJon, LLC

Appeal of: MonJon, LLC

No. 1253 C.D. 2021

Commonwealth Court of Pennsylvania

January 22, 2024

OPINION NOT REPORTED

Argued: October 10, 2023

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE LORI A DUMAS, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

MEMORANDUM OPINION

LORI A. DUMAS, JUDGE

MonJon LLC (MonJon) appeals from the order entered in the Court of Common Pleas of Allegheny County (trial court), reversing the order of the Zoning Hearing Board (Board) of the Borough of Pitcairn (Borough). After careful review, we affirm the order of the trial court.

I. BACKGROUND^[1]

MonJon owns property located at 366 Broadway in the Borough of Pitcairn (the Property), where it conducts its business as a rooming/boarding house. See N.T. Hr'g, 7/21/20, at 25-26.^[2] The building consists of individual units, which are often occupied on a short-term basis and which house between one and two individuals. See id. at 41.

Per Zoning Ordinance No. 27-1103, "[n]o dwelling house, apartment or other living quarters, or commercial establishment may be occupied when previously vacated after the date of this Chapter until such time as the owner or his agent has secured an occupancy permit to be issued by the Zoning Officer." See Borough of Pitcairn Zoning Ordinance § 27-1103(2) (2011). Additionally, "[t]he application for the permit shall be accompanied by a fee, in an amount as established from time to time by resolution of the Borough Council" and, if further inspections are required, "then an additional fee, also in an amount as established from time to time by resolution of the Borough Council, will be required for each additional inspection before an occupancy permit will be issued." See id. at § 27-1103(4).

In the instant case, the Borough assessed MonJon a $75 occupancy permit every time one of the units had a new occupant. See N.T. Hr'g, 7/21/20, at 50. The Borough has cited MonJon numerous times for violating the zoning ordinance. See id. at 14-22. MonJon appealed the enforcement order, but the zoning officer denied MonJon's request. Appeal of Not. of Zoning Violation, 2/6/20, at 2 (unpaginated).^[3] MonJon appealed to the Board, contending that the zoning ordinance had been applied arbitrarily, unreasonably, and discriminatorily in violation of its equal protection rights, and that the zoning ordinance was not substantially related to a police power purpose. See id. MonJon requested a determination that the Borough's enforcement conduct was improper or, in the alternative, a variance. See id. The Board convened an evidentiary hearing, Before the Board, MonJon argued that the Property was a hotel/motel and, accordingly, not subject to the landlord/tenant ordinances and occupancy, inspection, and fee requirements. See N.T. Hr'g, 7/21/20, at 60-61. MonJon also offered testimony regarding the Property's physical characteristics and operation. See N.T. Hr'g, 7/21/20, at 24-59. Additionally, the Borough provided a history of property inspections and issuances of violations. See N.T. Hr'g, 7/21/20, at 14-22.

On November 30, 2020, the Board issued its adjudication and determined that the Property was subject to the zoning ordinance as a dwelling house.^[4] See N.T. Adjudication, 11/30/20, at 4-5. The Board further rejected MonJon's assertion that the Property was a hotel/motel because it lacked the amenities of a hotel (including room service, wake up calls, cleaning services, services to individual units etc.).^[5] See id.

Nevertheless, the Board found that MonJon was entitled to a use variance. See id. at 5-7. The Board concluded that (1) a hardship existed because of the "unique characteristics of the Property," namely, that it consisted of 22 individual units being rented on a short-term basis, and (2) the applicant proved that a hardship existed because of the costs and frequency of the occupancy permits. See id. Additionally, the Board ordered the Borough to inspect all 22 units of the Property in the spring of each year and charge a $400 annual fee for the inspection, rather than inspections as provided in Section 27-1103.^[6] See id. at 6. The Board enjoined the Borough from conducting any other inspections or charging any other fees. See id. at 6-7.

Although MonJon disagreed with the Board's determination that it was not a hotel/motel, it did not immediately challenge the determination because it had been granted a variance. See, e.g., Appellant's Br. at 10. However, the Borough appealed to the trial court, and MonJon filed a petition to intervene. The trial court did not take additional evidence or schedule oral argument.^[7] Both parties submitted briefs for the trial court's consideration.

The trial court issued an opinion and order, reversing the Board and denying the variance. See Trial Ct. Op. & Order, 10/7/21. The trial court reasoned that the occupancy fees were not a hardship due to unique physical conditions peculiar to the Property but rather due to MonJon's business model. See id. at 3. The trial court further observed that the Board lacked authority to amend ordinances or restrict the Borough's ability to enforce the zoning ordinance but effectively had done so when it altered MonJon's fee and inspection requirements. See id. Therefore, the court concluded that the Board's decision was ultra vires. See id. The trial court did not address whether the Property was a hotel/motel.

MonJon timely appealed to this Court.

II. ISSUES

MonJon raises three issues in its appeal. First, MonJon contends that the trial court erred in reversing the Board's decision because the Board's actions were not ultra vires. See Appellant's Br. at 8. Second, MonJon contends that the Property is being operated as a hotel/motel and, therefore, not subject to Zoning Ordinance No. 27-1103. See id. Finally, according to MonJon, it proved undue hardship with respect to the Property. See id.

III. DISCUSSION^[8]

A. Ultra Vires Order

MonJon contends that the Board's actions did not constitute an ultra vires act. See Appellant's Br. at 12. According to MonJon, the zoning ordinance does not specifically require a new occupancy permit each time someone moves in or out of a rooming house. See id. Thus, MonJon suggests that the Board's decision properly recognized that the property has many individual units, and that it was equitable to order the Borough to charge an occupancy permit fee on an annual basis. See id. MonJon argues that because the fees constitute a prohibitive expense to its business, this constitutes an unnecessary hardship, and the Board did not err in interpreting the zoning ordinance in such a manner. See id. at 13.

The Borough responds that the decision of the Board was ultra vires because the Board lacks authority to amend ordinances. See Appellee's Br. at 1. Additionally, because the Board's order prevented the Borough from inspecting the Property, it has improperly granted injunctive relief to MonJon. See id. The Borough claims that this is in direct contradiction to established case law. See id. at 2.

"An ultra vires action is one that is performed without authority to act and beyond the scope of legal authorization." See Clairton Slag, Inc. v. Dep't of Gen. Servs., 2 A.3d 765, 782 (Pa. Cmwlth. 2010) (citations omitted); see also In re Leopardi, 532 A.2d 311, 314 (Pa. 1987) (concluding that actions taken outside of a zoning board's statutory authorization are ultra vires).

A zoning board is not a legislative body. Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg Twp., 918 A.2d 181, 187 (Pa. Cmwlth. 2007). Rather, zoning boards are administrative agencies created by the General Assembly. Golla v. Hopewell Twp. Bd. of Supervisors, 452 A.2d 273, 274 (Pa. Cmwlth. 1982). Their power is limited to that conferred expressly by the legislature, or by necessary implication. See id. The limit to that power must be strictly construed; a doubtful power does not exist. In re Leopardi, 532 A.2d at 313. Where a zoning board exceeds its authority, the order may not stand. See Greth Dev. Grp., Inc., 918 A.2d at 190.^[9]

Section 909.1(a) of the Pennsylvania Municipalities Planning Code (MPC),^[10] added by the Act of December 21, 1988, P.L. 1329, provides in relevant part that a zoning board is empowered to hear substantive challenges to the validity of land use ordinances^[11] without requests for a curative amendment,^[12] appeals from the determination of zoning officers, and consider applications for variances and special exceptions. See 53 P.S. § 10909.1(a). In contrast, it is the governing body^[13] that hears substantive validity challenges accompanied by applications for curative amendments to the zoning ordinance itself. Section 909.1(b)(4) of the MPC, 53 P.S. § 10909.1(b)(4). Thus, a zoning board lacks authority to modify or amend the terms of a zoning ordinance. See Greth Dev. Grp., Inc., 918 A.2d at 187. "[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." See id.

Additionally only the municipality or a delegated agent may initiate enforcement actions. In re Leopardi, 532 A.2d at 314. These actions are distinct to those functions delegated to the zoning board. See id. A zoning board may hear and decide appeals from decisions or actions of the zoning officer, hear and decide challenges to the validity of ordinances and maps, hear and decide requests for variances, and hear and decide requests for special exceptions. See id. However, a zoning board may not issue enforcement or remedial orders. See id. A zoning board "does not have the delegated...