Ulsh v. Zoning Hearing Bd., 22 A.3d 244 (Pa. Commw. Ct. 2011).

Doctrine of collateral estoppel applied in appeal of variance where the trial court previously ruled upon a similar variance application for the same property.
Case Details:

Applicant’s request for a variance from the density limitations was opposed and denied by the Zoning Hearing Board.  The Zoning Hearing Board, though, failed to mail a written decision within the required forty-five days.  Applicant claimed a deemed approval which was appealed by the objector.  In the meantime, Applicant sought another variance from the density limitation but for less relief.  This variance request was opposed by a different objector, but was granted by the Zoning Hearing Board, in part, because Applicant committed $1,800,000.00 to a Township fund for off-site improvements.  That variance was appealed by the second objector.

The second appeal was resolved first with the trial court upholding the Zoning Hearing Board’s approval of the second variance application.  But the Commonwealth Court reversed.  Throughout the litigation of the second appeal, the first appeal remained pending.  The Applicant subsequently filed a petition for judgment of non pros in the first appeal. The trial court denied that petition on the basis of the decision in the second appeal.

The Commonwealth Court held the trial court’s actions were proper because the doctrine of collateral estoppel applied.  In addition, non pros requires a showing of actual prejudice in the form of a lost ability to defend – Applicant failed to show this in the first case.  However, the Commonwealth Court held the trial court went too far and erred by utilizing the second case in support of its conclusion that Applicant was not entitled to any approval because the Court had found that Applicant failed to establish any unnecessary hardship with respect to the property.

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