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A Zoning Hearing Board lacks authority to issue advisory opinions.
Joe Darrah, Inc. v. Zoning Hearing Bd. of Spring Garden Twp., 928 A.2d 443 (Pa. Commw. 2007).
Landowner had a license to operate a junkyard and permission to operate a shredding facility on the same property. In 2005, the Township sought to enforce the section of the Junkyard Ordinance that limits the height of materials on the property to six feet. Landowner filed a request with the Zoning Officer to reclassify his operation as a “processing establishment,” which was allowed by right under section 207 of the Township Zoning Ordinance. The Zoning Officer denied the request, and Landowner appealed to the ZHB. Based on the definition of “junkyard” under section 103.3 of the Zoning Ordinance, the definition of “junkyard” under Chapter 13, section 701 of the Township Code, and the definition of “junk” in the Township Code, the ZHB denied the request for “reclassification.” Landowner appealed to the trial court, which upon taking no new evidence, affirmed the decision of the ZHB.
Commonwealth Court declined to address Landowner’s issue of reclassification of his property because it concluded that the ZHB lacked jurisdiction over this matter. The issue on appeal was whether the ZHB had authority to interpret the Zoning Ordinance in the absence of an application for a zoning permit or license or a challenge to the validity of the Ordinance. Pursuant to Section 909.1(a) of the Pennsylvania Municipalities Planning Code (MPC), zoning hearing boards may render final adjudications on “(1) challenges to the validity of a zoning ordinance, and (2) appeals of the grant or denial of a permit, a variance, or a special exception.”
In this case Landowner did not file a request for a permit or challenge the validity of the ordinance and Commonwealth Court concluded that the request for “reclassification” of his operation was a request for an advisory opinion. Because the ZHB lacked authority under the MPC to issue an advisory opinion, the decision was vacated.
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