ZHB of the City of Uniontown v. City Council of the City of Uniontown, 720 A. 2d 166 (Pa. Commw. 1988)
APPOINTMENT OF ZHB SOLICITOR: EXCLUSIVE POWER OF ZHB
Cross Reference: Pa. M.P.C. Sections 617.3 (b) and 907.
Conflicts sometimes arise between governing bodies and their zoning hearing boards as to the selection of a solicitor for the zoning hearing board. The Commonwealth Court has clearly held that the ZHB has the exclusive right to appoint its own solicitor and the municipality retains only the “power of the purse.”
The MPC provides that the ZHB, and not the governing body, has the right to select and employ the solicitor for the zoning hearing board (MPC 717.3 (b) and 907, 53 P.S. § 10617.3 (b) – (c) and 53 P. S. § 10907. The ZHB is not required to notify the municipality or obtain its consent concerning the selection or employment of its solicitor. Although the municipality establishes the budget for the ZHB, the ZHB sets the compensation for its solicitor based on the budget. In the instant case the Council rejected the zoning hearing board’s appointed solicitor and made its own appointment to the position. The ZHB appealed to the Commonwealth Court requesting injunctive relief.
The Court recognized that the ZHB and not Council has sole and complete authority to appoint its solicitor so long as the costs is within the budget approved by Council for operation of the ZHB. The Court found that Council’s reliance on Borough of Blawnox v. Olszewski, 505 Pa 176, 477, A2d 1322(1984) was misplaced. That case dealt with the general power of the Council to appoint a solicitor or solicitors to “control the law matters of the City.” Judge Jiuliante, in a dissenting opinion, was of the opinion that these general appointment powers superceded the provisions of the MPC. The remaining judges on the panel held that the provisions of the MPC for appointment of a ZHB solicitor are separate and distinct from the municipalities’ power to appoint its own solicitor(s).
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