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Evidence that the Township solicitor followed customary office procedures for mailing letters was sufficient evidence that the township complied with the requirements of the MPC for forwarding amendments to ordinances within 30 days of enactment even though there was no evidence of actual receipt by the planning department.
Appeal of: Rural Route Neighbors, 960 A.2d 856 (Pa. Cmwlth. 2008).
In November 2005, The Township Board of Supervisors adopted two new ordinances which rezoned the property of Craigarm LP. Neighbors appealed challenging the procedural validity of the ordinances. Neighbors argued that the Township failed to comply with section 609(g) of the MPC which requires Townships to forward copies of any amendments to zoning ordinances within 30 days of enactment.
The Township Solicitor testified that he forwarded copies of the ordinances to the planning department on December 5, 2005. The planning department had just recently moved and, rather than personally delivering the amendments, they were sent regular mail along with a delivery receipt. On December 20, 2005, the solicitor realized that the receipt was not returned so he physically delivered the amendments to the planning department. The solicitor testified that the amendments had been forwarded on December 5 based on the fact that the customary office procedures were that his secretary would take correspondence from his desk and mail it and that he had a copy of the December 5th letter in the file. The ZHB dismissed Neighbors’ challenge finding that the procedural requirements were met.
Neighbors filed an appeal in the trial court arguing that the record did not contain sufficient evidence to support a finding that the copies were sent to the planning department on December 5, 2005. The trial court agreed and found that the Township’s failure to comply with the MPC rendered the ordinances invalid. Craigarm appealed to the Commonwealth Court.
Craigarm argued that the trial court abused its discretion by substituting its judgment for that of the ZHB and erred in concluding that the ZHB’s findings were not supported by evidence. First, the Commonwealth Court agreed with the Neighbors because a reviewing court may not substitute its judgment for that of the ZHB. Next, the Commonwealth Court agreed that the ZHB’s findings were supported by evidence because circumstantial evidence is entitled to just as much weight as direct evidence. Therefore, the Commonwealth Court found that the ZHB drew a reasonable inference from the solicitor’s testimony. Neighbors argued that under the “mailbox rule,” evidence of customary mailing procedures is not sufficient to prove that a document was received. However, the Commonwealth Court pointed out that the MPC does not require evidence of receipt, but only evidence that the ordinances were forwarded, and evidence of customary procedures for mailing is accepted as sufficient evidence that a letter was mailed. The Commonwealth Court reversed the trial court’s decision.
In her dissenting opinion, Judge Leavitt argued that there was not enough evidence to support a finding that the ordinances were mailed because the entire testimony was based on assumptions.
Opinion Date: October 22, 2008
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