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Sunshine law application to zoning hearing board deliberations and decisions. Kennedy v. Upper Milford Twp. ZHB Cite as WL 776261, Pa. Cmwlth., 2001. Cross Reference: The Sunshine Act, 65 Pa. C.S. 703, 704, and 710. This decision provides a clear and concise analysis of the impact of the Pennsylvania Sunshine Law (65 Pa.C.S. Section 701 et. seq.) on deliberations and decisions made by a zoning hearing board. This case arose from the initial approval by the Zoning Hearing Board for a variance and special exception to permit the Pa. Turnpike Commission to erect a 180 foot high tower on property owned by it in the Township. In a Declaratory Judgment action filed by the protestants, the Lehigh County Court of Common Pleas affirmed the decision of the ZHB and the protestants appealed. The central issue considered by both the trial court and the Commonwealth Court was the impact of the ZHB's conducting of an "executive session" following which, without discussion, the Board rendered its decision. The ZHB decision was, in fact, a compromise between the 175 foot height that the testimony indicated would have been adequate for the Turnpike's purposes and the 200 foot height requested by the Turnpike. The Board approved the variance and special exception to permit the tower to be 180 feet. Appellants claimed that the actions of the ZHB violated the provisions of the Sunshine Act. The Commonwealth Court agreed and reversed the lower court. Specifically, the Appellants objected to the fact that the ZHB had recessed into a private session, and upon their return, without further discussion or comment from the public passed a motion approving the "compromise" approval of the Tower. The Pa. Sunshine Act states that "Official actions and deliberations of a quorum of the members of an agency shall take place at a meeting open to the public unless closed under Section¼708 (relating to executive sessions)¼65 Pa.C.S. Section 704. The ZHB argued that since the actual "decision" was made in public session, any violation of the Sunshine law was corrected. The Sunshine Act defines 'Deliberations" as the "discussion of agency business held for the purpose of making a decision." "Official Action" is defined as "decisions on agency business made by the agency" and "the vote taken by any agency on any motion (or) proposal¼" 65 Pa.C.S. Section 703. In this case the ZHB admittedly conducted "quasi-judicial" discussions during the recess. While the actual decision was made by a vote in the public meeting, the Court held that it was obvious that, because of the announcement by the Chairman that a vote would be taken on a "compromise" which had never been presented or discussed in public, the decision had in fact been made in private and therefor violated the Sunshine Act. The ZHB had argued that Section 708 of the Sunshine Act permitted executive sessions to "review and discuss agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including¼quasi-judicial deliberations". 65 Pa.C.S. Section 708(a)(5). The Court rejected the premise that any of the material discussed could have qualified under this exception. The Court also noted that not just deliberations but a "decision" had been made during the executive session. Finally, the Court did note that decisions made in public session can cure a Sunshine Act violation in the deliberations phase, but only when the decision follows public debate and comment on the proposed decision. See Lawrence County v. Brenner, 135 Pa. Comwlth. 619, 582 A 2d 79 Pa. Comwlth. (1990).
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