The case of Ulsh v. Zoning Hearing Board of Lower Paxton Township, et al., ___ A.3d ___, 2011 WL 1566690 (Pa. Cmwlth.) (decided April 26, 2011), addresses matters of res judicata, collateral estoppel and whether “economic hardship” can justify the issuance of a variance, but it is also a perfect example of how complicated and convoluted Pennsylvania zoning cases can become.

The matter began with Triple Crown Corporation (TCC) seeking to develop 492 residential units (a combination of single-family homes, townhomes and condominiums) on undeveloped land in Lower Paxton Township. Only 374 residential units were permitted by right, so TCC sought a variance to construct the additional units. Township resident Harry C. Ulsh attended the hearing and opposed the variance. The Zoning Hearing Board (ZHB) denied the application but failed to mail a written decision within the required 45 days. In June 2006, after the area was rezoned to “residential cluster,” TCC again applied for a variance, this time for 449 units. TCC also offered to fund $1,800,000 for off-site improvements. A second hearing was held and township resident Andrew Snyder opposed the application. At the hearing, TCC argued the variance for the additional units was necessary to offset the $1,800,000 it had committed to fund. The ZHB approved TCC’s request for a variance subject to certain conditions, including the $1,800,000 contribution for offsite improvements. Snyder appealed the approval, and TCC intervened.  

In November 2006, while at the briefing stage of the Snyder appeal, TCC also filed a mandamus action against the ZHB and the township, demanding the ZHB give public notice of a “deemed approval” as a result of the ZHB’s failure to issue a written decision on the first variance application within 45 days after the hearing. The ZHB settled the mandamus action by agreeing to give public notice of deemed approval of the first variance application in exchange for TCC’s agreement to limit development to 449 units and agreeing to the other conditions imposed in connection with the second variance application approval.  

After the ZHB gave public notice of the deemed approval of the first variance, Ulsh filed a timely appeal of that deemed approval, and TCC intervened. In the Snyder appeal, counsel representing Snyder (the same counsel that represented Ulsh) alerted the court to the Ulsh appeal and claimed that any decision in the Snyder appeal would be controlling in the Ulsh appeal. Although TCC denies that claim was ever made, the trial court in the Ulsh appeal never issued a briefing schedule.  

In May 2008, the trial court in the Snyder appeal issued a decision upholding the ZHB’s grant of the second variance, and Snyder appealed to the Commonwealth Court. In January 2009, the Commonwealth Court reversed the grant of the second variance on the grounds that economic hardship resulting from TCC’s agreement to fund offsite improvements was not an “unnecessary hardship” that would support the grant of a variance.

TCC filed a petition for a judgment of non pros in the appeal of the first variance, since no action had been taken since its intervention in December 2007. Ulsh then filed an application for a status conference based on the fact that the Commonwealth Court had rendered a decision in the Snyder appeal. On June 25, 2010, the trial court denied TCC’s petition for a judgment of non pros and reversed the deemed approval based upon the Commonwealth’s ruling in the Snyder appeal. TCC appealed to Commonwealth Court.

The Commonwealth Court began its analysis by discussing whether the decision in the Snyder appeal of the second variance would be binding precedent upon the trial court hearing Ulsh’s appeal of the first variance. The court determined the issue decided in the Snyder appeal was identical to that being appealed in the Ulsh matter, notwithstanding the fact that the variances were separate matters with separate hearings. Since the terms and conditions agreed to connection with the approval of the second variance application (i.e., the number of units and the terms upon which the approval would be granted) were later adopted in settling the mandamus action relating to the first variance application, the issues in both matters became identical. In addition, because all of the parties were essentially the same (involving TCC, the ZHB and township residents represented by the same counsel), no party was disadvantaged by applying the conclusions reached in the Commonwealth Court’s decision in the second variance application to the facts of the first variance application. As a result, the Commonwealth Court determined the doctrine of collateral estoppel applies and the trial court in the Ulsh appeal did not err in concluding that appeal is controlled by the Commonwealth Court decision in the Snyder appeal. TCC was thus collaterally estopped from relitigating the issue “of whether TCC proved that the subject ordinance inflicted an unnecessary hardship with respect to the proposed development.”

With regard to TCC’s argument that it should have been granted a judgment of non pros, the court determined that TCC did not present any evidence of actual prejudice and Ulsh was justified in awaiting the decision in the Snyder appeal before proceeding with his appeal of the deemed approval of the first variance application. The trial court was thus justified in denying the request for a judgment of non pros.  

The Commonwealth Court did, however, agree with TCC that the trial court in the Ulsh appeal “erred by failing to make substantive findings of fact to support its decision to reverse the deemed approval of the variance, and by interpreting Snyder as compelling its conclusion that TCC is not entitled to any approval.” Although the Snyder decision did collaterally estopp TCC from re-litigating certain issues, that was not sufficient for the trial court to determine that TCC was not entitled to any approval at all. The deemed approval of the first variance application is the equivalent of an approval. In Snyder, the Commonwealth Court did not specifically address the issue of the deemed approval in the first variance application. Since the trial court failed to make any specific findings of fact as to the merits of that particular application, the Commonwealth Court remanded the Ulsh appeal for proceedings consistent with its opinion.