• Notice of public hearings: All hearings before a zoning hearing board must be advertised in a newspaper of general circulation once a week for two successive weeks, not more than 30 and no less than seven days from the date of the hearing. Under Section 1909 of the Pennsylvania Statutory Construction Act, the phrase “successive weeks” means calendar weeks; publication upon any day of the week constitutes sufficient publication for that week, but at least five days must elapse between each publication. The public notice must state the time and place of the hearing and the particular nature of the matter to be considered.
  • Formal rules of evidence do not apply: Formal rules of evidence do not apply in zoning hearing board hearings, but “irrelevant, immaterial, or unduly repetitious evidence may be excluded.” Evidence is relevant if “it logically tends to establish a material fact, makes a fact at issue more or less probable, or supports a reasonable in[ference] or presumption regarding the existence of a material fact,” as in Joseph v. N. Whitehall Township Board of Supervisors, 16 A.3d 1209, 1218-19 (Pa. Commw. Ct. 2011).
  • Hearsay evidence admissible only if corroborated: Zoning hearing boards are not bound by strict rules against hearsay. However, the law is well-established that in zoning hearing board hearings “hearsay evidence, properly objected to, is not competent evidence to support a finding of the [board],” see Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Commw. Ct. 1976); see also In re Appeal of Little Britain Township, 651 A.2d 606, 615 (Pa. Commw. Ct. 1994). On the other hand, hearsay evidence, if corroborated, may be considered competent evidence upon which a zoning hearing board may fully rely, see also Lake Adventure Community Association v. Dingman Township Zoning Hearing Board, 79 A.3d 708, 714 n.4 (Pa. Commw. Ct. 2013). Hearsay objections are commonly raised, and usually sustained, in zoning hearing board proceedings when nonexpert members of the public reference internet articles, third party studies and the like, on the basis that the opposing party has been denied the opportunity to cross-exam the author.
  • Discovery:  When compared to other legal proceedings, options for discovery in zoning hearing board hearings are very limited. The MPC provides no authority to depose a witness, file interrogatories, or submit requests for production of documents. Discovery is only available via subpoena. Section 908(4) of the MPC provides that the “chairman or acting chairman of the [zoning hearing board] or the hearing officer presiding shall have power to ... issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.”
Leonard v. Pennsylvania State Police
  • Civil versus criminal designation of zoning hearing board hearings: Prior to 1988, the MPC authorized municipalities to adopt zoning ordinances with enforcement provisions that imposed imprisonment as a penalty for violation convictions or failure to pay fines. Due to the threat of imprisonment, zoning enforcement proceedings during this time were treated as criminal in nature. Accordingly, anyone subject to enforcement was afforded protection under the Pennsylvania Rules of Criminal Procedure.
Town of McCandless v. Bellisario Town of McCandless
  • Fifth Amendment privilege against self-incrimination: The Fifth Amendment of the U.S. Constitution not only protects an individual against being involuntarily called as a witness against himself in a criminal prosecution, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, where the answers might incriminate him in future criminal proceeding,” see Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). As the Pennsylvania Supreme Court confirmed in Town of McCandless, zoning hearing board hearings are civil proceedings where imprisonment is not a remedy for conviction or failure to pay a fine. Therefore, witnesses called during a zoning hearing board hearing may “plead the Fifth,” but, due to the civil nature of the proceeding, must do so on the stand on a question-by-question basis, see Philadelphia v. Fraternal Order of Police, Lodge No. 5, 521 A.2d 517, 519 (Pa. Commw. Ct. 1987).
  • Standard of review on appeal: Pennsylvania courts have consistently recognized that land use appeals filed with the court of common pleas pursuant to Article X-A of the MPC challenging a zoning hearing board's determination are not lawsuits, but rather statutory appeals. Consequently, appeals of a zoning hearing's determination may not raise any issue not first raised before the zoning hearing board nor may a judge engage in fact finding, authorize discovery, or enter judgments, as in Human Development of Erie v. Zoning Hearing Board of Millcreek Township, 600 A.2d 658 (Pa. Commw. Ct. 1991).
Mars Area Residents v. Zoning Hearing Board Valley View Civic Association v. Zoning Board of Adjustment, Taliaferro v. Darby Township Zoning Hearing Board Kretschmann Farm v. Township of New Sewickley Blaine A. Lucas is a shareholder and Alyssa E. Golfieri an associate in the public sector services and energy and natural resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. Lucas coordinates the firm's representation of energy clients on land use and other local regulatory matters. He also teaches land use law at the University of Pittsburgh School of Law. Golfieri focuses her practice on zoning, subdivision, land development, code enforcement and public bidding matters.