Panzone v. Fayette County ZHB, (Pa. Commw. Ct. 2008).
Notice of a hearing was not properly served when it was not sent to the attorney of record.
Landowner of property located in an R-2 Medium Density Residential Zone who had kept horses on his property for thirty-four years received an enforcement notice informing him that he was in violation of the zoning ordinance for keeping horses on the property. Landowner appealed to the Zoning Hearing Board (ZHB) arguing that he had a special exception as a vested right or, alternately, a variance by estoppel because he had been keeping the horses on the property for so long. An adjoining landowner testified that he previously had complained to the Township and the County and expressed concern over the potential health hazards. The ZHB denied Landowner’s request for relief finding that the keeping of horses was inconsistent with the promotion of the public safety and health.
Landowner appealed to the trial court. The prothonotary served a copy of an order directing a hearing on the assistant county solicitor. No one appeared at the hearing on behalf of the ZHB, and the trial court conducted a de novo hearing and granted Landowner a variance by estoppel. The ZHB solicitor then filed an Emergency Petition for Reconsideration arguing that the prothonotary made a clerical error by not serving notice of the hearing to the ZHB’s solicitor. The trial court found that the ZHB had proper notice because its solicitor knew of the land use appeal and Landowner’s attorney had spoken to its Attorney about the hearing. The ZHB appealed to the Commonwealth Court arguing that the ZHB solicitor did not have notice and that the ZHB does not maintain offices in the county courthouse and all mail is forwarded to each counsel’s respective law office.
The Commonwealth Court found that notice was not properly served because it was not served on the attorney of record, as required under the Pennsylvania Rules of Civil Procedure. Further, the Court found that the ZHB’s solicitor knew of the appeal, but did not know of the hearing. Finally, the Court found that the trial court did not set forth findings of fact or conclusions of law. The Court remanded to the trial court to set forth its findings of fact and conclusions so that appellate review could be properly conducted.
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