              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The City of Clairton, PA,               :
                   Appellant            :
                                        :   No. 1525 C.D. 2018
            v.                          :
                                        :   Argued: May 6, 2019
Zoning Hearing Board of the City of     :
Clairton, PA, and Cornerstone           :
Residence, Inc.                         :
                                        :
            v.                          :
                                        :
Zoning Hearing Board of the City of     :
Clairton, PA and George Glagola,        :
City of Clairton Zoning Officer         :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                          FILED: May 31, 2019


            The City of Clairton, Pennsylvania (City) appeals from the October 30,
2018 order of the Court of Common Pleas of Allegheny County (trial court), which
held that the application of Cornerstone Residence, Inc. (Cornerstone) for an
occupancy permit was deemed approved with the express condition that no residents
will be confined on Cornerstone’s premises by court order.
                               Facts and Procedural History
                Cornerstone owns a property located at 622 Delaware Avenue in the City
(the Property). As noted by the trial court, and based on Cornerstone’s application, the
Property is located in a residential area, zoned as an R-2 medium density zoning
district. The Property consists of a single-family dwelling, which is a permitted use in
the R-2 zoning district. Cornerstone sought to utilize the Property to provide residential
living in a single-family setting to those who are disabled, as defined by the Fair
Housing Amendments Act of 1988 (Fair Housing Act),1 and in need of such residence
to live independently as they recover from drug and/or alcohol addiction. (Trial court
op. at 1-2.)
                On December 14, 2017, Cornerstone filed an application with the City’s
Zoning Officer seeking an occupancy permit for a single-family dwelling on the
Property. Cornerstone’s application reveals that the Property contains a former church
and rectory and that Cornerstone only sought to utilize the former rectory for a sober
living residence that will house 8 to 10 disabled residents along with a house manager
and will be funded in part by charges to the residents for expenses. (Reproduced
Record (R.R.) at 6a, 12a.) The Zoning Officer took no action and on January 17, 2018,
Cornerstone filed a notice of appeal with the City’s Zoning Hearing Board (Board). In
its notice of appeal, Cornerstone alternatively suggested that if its use could not be
considered a single-family dwelling, but instead a group home, the Fair Housing Act
permits occupancy by persons with disabilities as a single family and, hence, it would
still be a permissible use in the R-2 zoning district. (R.R. at 16a-17a.)



       1
           42 U.S.C. §§3601 – 3631.




                                            2
                However, the Board failed to conduct a hearing within 60 days as required
by section 908(1.2) of the Municipalities Planning Code (MPC).2 On April 25, 2018,
Cornerstone filed a complaint in mandamus against the Board seeking a deemed
approval. At the same time, Cornerstone provided public notice of the deemed
approval through newspaper advertisements and a posting on the premises. The City
responded by filing a land use appeal with the trial court.
                In its land use appeal, the City argued that the deemed approval provisions
of the MPC did not apply because the Board had no jurisdiction over Cornerstone’s
application; Cornerstone’s appeal to the Board was premature, i.e., occurred before the
Zoning Officer was required to render a decision; Cornerstone’s proposed use failed
on the merits because it did not meet the definition of a single-family dwelling and,
therefore, was not permitted by right in an R-2 zoning district; Cornerstone’s proposed
use failed on the merits because it was a potential conditional use, which is not
governed by the Zoning Officer or the Board; and Cornerstone’s proposed use failed
on the merits because it was not entitled to a reasonable accommodation under federal
or state law since its proposed residents do not constitute a protected class. (R.R. at
9a.)   The trial court consolidated the City’s land use appeal and Cornerstone’s
mandamus action. (Trial court op. at 2.)
                  The trial court did not take any additional evidence. Following briefing
and oral argument, the trial court issued a decision on October 30, 2018, holding that
Cornerstone’s application was deemed approved. Because Cornerstone represented to
the trial court during oral argument that it had no intention of permitting any residents
to live at the Property who were confined there by court order, the trial court included
this as an express condition of the deemed approval. The trial court reasoned that the


       2
           Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(1.2).


                                                  3
Board’s failure to conduct a hearing within 60 days resulted in a deemed approval of
Cornerstone’s application. The trial court rejected the City’s argument that the Board
lacked jurisdiction because Cornerstone actually sought a conditional use as a group
home, noting that the Board had jurisdiction under section 909.1(a)(3) of the MPC3
over appeals from the determination of a zoning officer, including the failure to act on
an application. The trial court relied on this Court’s decision in Gibraltar Rock, Inc. v.
New Hanover Township Zoning Hearing Board, 68 A.3d 1012, 1018 (Pa. Cmwlth.
2013), wherein we stated that when an applicant seeks deemed approval of a zoning
application, “[t]he merits of the application are irrelevant; a board’s inaction will
subject it to a writ of mandamus ordering a deemed decision.”4 (Trial court op. at 2-
4.) The City thereafter filed a notice of appeal with this Court.


                                            Discussion
                On appeal, the City raises three arguments. First, the City argues that the
trial court erred by failing to conduct a de novo review, i.e., issuing its own findings of
fact and conclusions of law. Second, the City argues that the trial court lacked
jurisdiction to approve Cornerstone’s application because Cornerstone failed to exhaust
administrative remedies. Finally, the City argues that the trial court erred in ordering
that Cornerstone’s application was deemed approved.5


       3
           Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10909.1(a)(3).

       4
         The trial court failed to recognize that this statement had no relation to an appeal from a
deemed approval. Indeed, we later explained in Gibraltar Rock, Inc., that in the event of such an
appeal, a common pleas court “must hear the matter de novo and render its own findings of fact and
conclusions of law.” Id. at 1020.

       5
         The Board has filed a brief in this matter with arguments that essentially mirror those raised
by the City.


                                                  4
             We begin by noting that whether an incorrect legal standard was applied
is a question of law and, as such, an appellate court’s standard of review is de novo and
the scope of review is plenary. Braun v. Wal-Mart Stores, Inc., 106 A.3d 656, 663 n.8
(Pa. 2014). The issues regarding exhaustion of remedies, interpretation of the MPC,
and whether a proposed use falls within a given category specified in a zoning
ordinance similarly involve questions of law for which the same standard of review
applies. See Newtown Square East, L.P. v. Township of Newtown, 101 A.3d 37, 42
(Pa. 2014) (“To the extent that [the] issues before this Court rest on interpretation of
the MPC, they present a question of law for which our standard of review is de novo
and our scope is plenary.”); Sands Bethworks Gaming, LLC v. Pennsylvania
Department of Revenue, 958 A.2d 125, 129 n.6 (Pa. Cmwlth. 2008), aff’d, 968 A.2d
763 (Pa. 2009) (“Because the issue [of exhaustion of internal administrative remedies]
involves a question of law, our scope of review is plenary.”); Tennyson v. Zoning
Hearing Board, 952 A.2d 739, 744-45 (Pa. Cmwlth. 2008) (“Whether a proposed use,
as factually described in an application or in testimony, falls within a given category
specified in a zoning ordinance is a question of law . . . . Thus, our review is plenary.”).


                             De Novo Standard of Review
             As noted above, the City first argues that the trial court erred by failing to
conduct a de novo review, i.e., issuing its own findings of fact and conclusions of law.
Had the trial court applied the correct standard of review, the City argues that
Cornerstone’s application would fail because its proposed use was not a single-family
dwelling as alleged, but rather a group home.
              We first address the issue of the deemed approval. Upon receipt of an
application, section 908(1.2) of the MPC governs and, in pertinent part, provides, “The



                                             5
first hearing before the board or hearing officer shall be commenced within 60 days
from the date of receipt of the applicant’s application, unless the applicant has agreed
in writing to an extension of time.” 53 P.S. §10908(1.2). However, where the board
does not timely act upon the application, section 908(9) applies. Specifically section
908(9) provides that “where the board fails to render the decision within the period
required by this subsection or fails to commence, conduct or complete the required
hearing as provided in subsection (1.2), the decision shall be deemed to have been
rendered in favor of the applicant unless the applicant has agreed in writing or on the
record to an extension of time.” 53 P.S. §10908(9). Here, Cornerstone posted notice
of the deemed approval for failure of the Board to hold a hearing. There is no dispute
that the Board failed to conduct a hearing with respect to Cornerstone’s application
seeking an occupancy permit for a single-family dwelling on the Property within 60
days as required by section 908(1.2). Hence, in accordance with section 908(9), the
Board is deemed to have ruled in favor of Cornerstone.
             Nevertheless, a deemed approval is not “self-effectuating,” Maple Street
A.M.E. Zion Church v. City of Williamsport, 7 A.3d 319, 323 (Pa. Cmwlth. 2010), and
section 908(9) further imposes a duty on the applicant to give public notice of a deemed
approval whenever the Board fails to do so. In this case, Cornerstone, the applicant,
provided this public notice by posting notice of the deemed approval in the Pittsburgh
Post-Gazette on May 4 and 11, 2018. (R.R. at 8a.) Indeed, the City responded to such
notice by filing its land use appeal with the trial court.
             Both the City and Cornerstone agree that, once an interested party appeals
a deemed zoning application approval, a reviewing court must determine the merits of
the application and issue its own findings of fact and conclusions of law. Gryshuk v.
Kolb, 685 A.2d 629, 634 (Pa. Cmwlth. 1996). In Gryshuk, the landowners operated a



                                             6
gun club on their property in Upper Hanover Township. After being cited by the
Hanover Township Zoning Officer for constructing clay target cages/shooting stations
within 100 feet of their property setback area, the landowners filed an application for a
variance with the Upper Hanover Township Zoning Hearing Board. The Zoning
Hearing Board conducted hearings on October 12 and 19, 1994, and delivered an oral
decision at a meeting on December 14, 1994. However, the Zoning Hearing Board did
not issue a written decision until January 18, 1995. Approximately one week later, the
landowners notified the Zoning Hearing Board that they were asserting a deemed
approval of their variance application due to the delay in the issuance of a written
decision, and they proceeded to file a mandamus action with the common pleas court.
Around the same time, intervening neighbors filed a notice of appeal from the deemed
approval.
             The common pleas court ultimately granted the landowners’ mandamus
petition and scheduled argument relating to the neighbors’ appeal. The common pleas
court took no additional evidence and later granted the neighbors’ appeal, thereby
reversing the deemed approval. On appeal, this Court concluded that the granting of
the landowners’ mandamus action was correct, but that the common pleas court erred
in conducting a substantial evidence review of the Zoning Hearing Board’s decision
instead of making its own findings of fact. We rejected arguments from Upper Hanover
Township that the common pleas court did, in fact, make its own findings and,
alternatively, that any error in applying the proper standard of review was harmless.
We stressed that a common pleas court is the fact-finder when it reviews a deemed
zoning hearing board approval. However, we noted that the common pleas court
merely cited the findings and conclusions of the Zoning Hearing Board “extensively in
its opinion and purported to review them for substantial evidence.” Id. Hence, we



                                           7
vacated the common pleas court’s decision and remanded for application of the proper
standard of review. See also DeSantis v. Zoning Hearing Board of City of Aliquippa,
53 A.3d 959, 962 (Pa. Cmwlth. 2012) (vacating the trial court’s order because it “erred
in conducting appellate, as opposed to de novo, review of the Board’s deemed
approval”); Ulsh v. Zoning Hearing Board, 22 A.3d 244, 252 (Pa. Cmwlth. 2011)
(reversing the common pleas court because it failed to make substantive findings of
fact to support its decision to reverse the deemed approval of a variance); Nextel
Partners, Inc. v. Clarks Summit Borough/Clarks Summit Borough Council, 958 A.2d
587, 596 (Pa. Cmwlth. 2008) (reiterating, in the context of whether a deemed approval
did occur, that “when a deemed approval occurs, a board’s findings are nullified and
the trial court is required to make its own findings”).
             The parties here disagree, however, as to whether the trial court applied
the correct standard and made its own findings. Cornerstone relies on the following
excerpt from the trial court decision as meeting this standard:

             The Property is a single-family dwelling which is a permitted
             use in the R[-]2 zoning district. Cornerstone seeks to provide
             residential living in a single-family setting to those who are
             disabled, as defined by the Fair Housing Act, and in need of
             such residency to live independently as they recover from
             drug and/or alcohol addiction.
(Trial court op. at 2.) The City argues that the excerpt relied upon by Cornerstone
merely represents introductory, background information on the case and does not
constitute findings of fact and conclusions of law. The City also notes that the trial
court cited to the general appellate standard of review in its opinion, i.e., “whether the
Board committed an error of law, abused its discretion or made findings not supported
by substantial evidence.” (Trial court op. at 2-3.) We agree with the City in this regard.




                                            8
             As the City notes in its brief, and Cornerstone agrees, “[T]he crux of this
long-running dispute is whether Cornerstone’s proposed use fits the definition of a
single-family use, and, as such, may be permitted” in an R-2 zoning district. (City’s
Brief at 8.) However, the trial court did not take additional evidence or hear testimony
from any witnesses and did not engage in an analysis of the definition of a single-
family dwelling or application of the Fair Housing Act. Moreover, the Board did not
hold a hearing, so the trial court had no testimony or evidence to review, and upon
which to rely, in rendering findings of fact and conclusions of law. As the City notes
in its brief, Cornerstone’s application contained many characteristics, never addressed
by the trial court, that do not appear to be consistent with a single-family dwelling use,
such as, the Property will be used as a sober living residence for men recovering from
addiction to alcohol/drugs; the Property will house 8-10 disabled residents; oversight
will be provided by Cornerstone, including its president Joyce Douglass; the residence
will include a house manager; residents will be charged for necessary expenses; and
residency is expected to be for a substantial period or permanent.
             As such, we cannot view the trial court’s statements as findings of fact or
conclusions of law regarding whether the use proposed by Cornerstone at the Property
constituted a single-family use and what impact, if any, the Fair Housing Act has on
Cornerstone’s application. Indeed, as the City notes in its brief, at a later hearing in
this case relating to a motion filed by Cornerstone to vacate the automatic supersedeas,
the trial court essentially denied that it had previously rendered any determination on
the merits. Specifically, in addressing the requirement of Cornerstone’s likelihood of
success on the merits, counsel for the City disputed an allegation by Cornerstone’s
counsel that the trial court’s October 30, 2018 opinion had determined that
Cornerstone’s application met the standard for single-family use. The trial court



                                            9
responded “I didn’t think it did.” (R.R. at 230a.) Moreover, we disagree with
Cornerstone’s contention that the trial court’s discussion of the appellate standard was
limited to consideration of its mandamus action and, at most, constituted “harmless
error.” (Brief of Cornerstone at 9.) Thus, the matter must be remanded to the trial
court to apply the proper standard of review.


                      Exhaustion of Administrative Remedies
             The City next argues that the trial court lacked jurisdiction to approve
Cornerstone’s application because Cornerstone failed to exhaust administrative
remedies. More specifically, the City argues that Cornerstone failed to go before the
City’s Planning Commission and City Council to have its application approved as a
conditional use and that Cornerstone’s appeal to the Board was premature.
             Generally, a court lacks jurisdiction where administrative remedies are
not exhausted prior to seeking judicial review. Birch Hills Residence v. Department of
Public Welfare, 943 A.2d 357, 361-62 (Pa. Cmwlth. 2008) (“[A] party challenging
administrative decision-making must first exhaust administrative remedies before
seeking judicial review; courts lack jurisdiction where such remedies exist.”). “The
doctrine of exhaustion of administrative remedies requires a party to exhaust all
adequate and available administrative remedies before the right of judicial review
arises.” Heffner Funeral Chapel & Crematory, Inc. v. Department of State, Bureau of
Professional and Occupational Affairs, 824 A.2d 397, 400 (Pa. Cmwlth. 2003).
Additionally, we have described this doctrine as a “court-made rule intended to prevent
premature judicial intervention into the administrative process.” Id.
             The City’s conditional use argument is premised on its allegation that
Cornerstone’s proposed use did not meet the definition of a single-family dwelling, but



                                          10
instead constituted a group home use. The City notes that a group home use is
permitted as a conditional use in an R-2 zoning district under the local zoning
ordinance, but must first be presented to the City’s Planning Commission and then be
approved by City Council, not the Zoning Officer or the Board. Cornerstone responds
that section 337-39(B) of the local zoning ordinance provides that “The Zoning Officer
. . . shall . . . [r]eview all applications for zoning permits and zoning occupancy permits,
and issue permits when there is compliance with the provisions of this chapter,” R.R.
at 100a, and that the Board retains exclusive jurisdiction to review the Zoning Officer’s
decisions under section 909.1(a)(3) of the MPC. This section provides that a zoning
hearing board “shall have exclusive jurisdiction to hear and render final adjudications
in the following matters . . . appeals from the determination of the zoning officer,
including, but not limited to, the granting or denial of any permit, or failure to act on
the application therefor, the issuance of any cease and desist order or the registration
or refusal to register any nonconforming use, structure or lot.” 53 P.S. §10909.1(a)(3).
             The City’s argument relating to Cornerstone’s premature appeal focuses
on Cornerstone’s January 17, 2018 appeal to the Board, which was submitted only 34
days after it submitted the application for an occupancy permit to the Zoning Officer.
The City avers that the local zoning ordinance does not require a Zoning Officer to
render a decision on such an application within 30 days, thereby rendering
Cornerstone’s appeal to the Board as premature. Cornerstone responds that the Board
has jurisdiction under section 909.1(a)(3) of the MPC over appeals from the
determination of the Zoning Officer, including the failure to act on an application, and
that the City cannot alter this section by not prescribing a specific amount of time for
the Zoning Officer to act on an application.




                                            11
             This Court makes no determination on these issues, but instead directs the
trial court to make further findings of fact and conclusions of law regarding the same
on remand.


                                  Deemed Approval
             Finally, the City argues that the trial court erred in ordering that
Cornerstone’s application was deemed approved as a result of the Board’s failure to
hold a hearing within the required 60 days. While the parties do not disagree that the
Board did not hold a hearing within 60 days of the filing of Cornerstone’s application,
the City contends this is irrelevant because the Board lacks jurisdiction over
conditional uses, which was the use described in the application. The City’s argument
is, thus, premised on the Board’s lack of jurisdiction over Cornerstone’s application,
which, as noted above, must be addressed on remand.


                                      Conclusion
             Based upon the above, we must remand to the trial court to first address
the City’s claim that Cornerstone’s appeal of the Zoning Officer’s decision to the Board
was premature. If the trial court rejects this argument by the City, it must next address
the type of use sought herein by Cornerstone, i.e., a single-family or group home use,
the latter being subject to a different procedural posture which would require
Cornerstone to exhaust its administrative remedies related thereto. Finally, if the trial
court accepts the proposed use as a single-family residential dwelling, it must then
apply the proper standard of review and consider the City’s appeal of the Board’s
deemed approval de novo, i.e., issue its own findings of fact and conclusions of law
with respect to the merits of Cornerstone’s application. In considering this issue, the



                                           12
trial court should address the impact, if any, of the Fair Housing Act on Cornerstone’s
application.
               Accordingly, the order of the trial court is vacated and the matter is
remanded to the trial court for further findings and conclusions consistent with this
opinion.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          13
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The City of Clairton, PA,                :
                   Appellant             :
                                         :    No. 1525 C.D. 2018
            v.                           :
                                         :
Zoning Hearing Board of the City of      :
Clairton, PA, and Cornerstone            :
Residence, Inc.                          :
                                         :
            v.                           :
                                         :
Zoning Hearing Board of the City of      :
Clairton, PA and George Glagola,         :
City of Clairton Zoning Officer          :


                                      ORDER


            AND NOW, this 31st day of May, 2019, the order of the Court of
Common Pleas of Allegheny County (trial court), dated October 30, 2018, is hereby
vacated. The matter is remanded to the trial court for further findings of fact and
conclusions of law consistent with this opinion.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
