Human Development of Erie, Inc. v. Zoning Hearing Board

PELLEGRINI, Judge.

Human Development of Erie, Inc., Lakeshore Community Services, Inc. (Providers), and eleven mentally retarded residents of three community residential facilities operated either by Human Development of Erie, Inc. or Lakeshore *677 Community Services, Inc. (Residents), appeal an order denying their request for attorney’s fees and costs pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, as amended, 42 U.S.C. § 1988 (Section 1988), and the Fair Housing Act, 42 U.S.C. § 3613 (c).

On December 14, 1987, Millcreek Township (Township) adopted Ordinance No. 87-24 (Amendment), which was an amendment to its zoning ordinance, excluding from all residential and agricultural districts “group homes” 1 for the “mentally retarded” and “physically handicapped” and “personal care boarding homes” 2 for those over 62 years of age. Group homes and personal care boarding homes were only permitted as a special exception in “A” and “B” business districts.

On January 13, 1988, pursuant to Section 1005 of the Municipalities Planning Code (MPC), 53 P.S. § 11005, 3 Pro *678 viders and Residents challenged the validity of the Amendment to the Millcreek Township Zoning Hearing Board. Among other contentions raised before the Zoning Hearing Board, 4 either Providers or Residents claimed 5 that the Amendment violated the Equal Protection and Due Process Clauses of the United States and Pennsylvania Constitutions, because the zoning amendments impermissibly discriminated against certain persons and uses of property, and that the Township’s action constituted an unlawful deprivation of rights under color of state law in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (Section 1983). 6

*679 After a hearing, on July 27, 1988, the Millcreek Township Zoning Hearing Board rejected those claims and found that the Amendment violated neither federal nor state laws nor constitutions, and was “reasonably related to the protection of the public health, safety and welfare and was rationally related to a legitimate governmental purpose.” Pursuant to Section 11008 of the MPC, 53 P.S. § 11008 7 , Providers and Residents appealed the decision to the court of common pleas.

On the. basis of the record and without taking additional evidence, the trial court reversed the Millcreek Township Zoning Hearing Board and found that an exclusion of group homes and personal care boarding homes constituted a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. While the trial court did not specifically find a Section 1983 violation, it did find that the Amendment violated the recently amended Fair Housing Act, 42 U.S.C. § 3604 (f), 8 because it impermissibly discriminated against the handicapped by lessening the availability of housing.

Because they prevailed, Providers and Residents requested attorney’s fees and costs incurred in challenging the Amendment. The trial court denied the request for fees *680 because it found that there was no bad faith on the part of the Township in enacting the Amendment.

Providers and Residents appealed the denial of attorney’s fees and costs and the Township appealed the trial court’s decision on the merits. Prior to argument, however, the Township withdrew its appeal. Consequently, the only issue on appeal is whether a party can receive Section 1988 attorney’s fees and costs incurred as a result of a challenge before the Zoning Hearing Board and an appeal from an adverse decision to the court of common pleas.

Providers and Residents contend that they are entitled to attorney’s fees, both under Section 1988 and the Fair Housing Act. Section 1988 provides that attorney’s fees can be awarded:

The jurisdiction in civil and criminal matters conferred on the district courts [of the United States] by the provisions of this Title, and of Title “CIVIL RIGHTS” and of Title “CRIMES,” for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. In any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revise Statutes [42 USCS §§ 1981-1983,1985, 1986], title IX of Public Law 92-318 [20 USCS §§ 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], the court, in its discretion, may allow *681 the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. (Emphasis added.) 9

In similar language, the Fair Housing Act, 42 U.S.C. § 3613 (c), provides that “the court in its discretion may allow the prevailing party ... a reasonable attorney’s fee and costs.” Because they prevailed in their challenge to the Amendment, Providers and Residents argue that the common pleas court, as part of its appellate review, was required to impose attorney’s fees either under Section 1988 or under the Fair Housing Act. See Kentucky v. Graham, 473 U.S. 159, 164 , 105 S.Ct. 3099, 3104 , 87 L.Ed.2d 114, 120 (1985) .

In North Carolina Department of Transportation v. Crest Street, 479 U.S. 6 , 107 S.Ct. 336 , 93 L.Ed.2d 188 (1986) , the Supreme Court held that a prevailing party before an administrative agency cannot file an independent action to obtain Section 1988 attorney’s fees, even if it had raised Section 1983-type claims before an administrative agency. While the Supreme Court has held that time spent before an administrative agency may be chargeable, either because the work was a condition precedent to a Section 1983 action, Crest Street , or was necessary to enforce rights obtained in a Section 1983 case, Commonwealth of Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546 , 106 S.Ct. 3088 , 92 L.Ed.2d 439 (1986), because “only a court in an action to enforce one of the civil right’s laws listed in Section 1988 may award attorney’s fees”, it stated that “attorney’s fees would be awarded only when those proceedings are part of or followed by a lawsuit.’’ Crest Street, 479 U.S. at 14 , 107 S.Ct. at 341 . (Emphasis added.) 10 Accordingly, whether *682 Providers and Residents can be awarded attorney’s fees is determined by whether a Notice of Appeal to the common pleas court from an adverse zoning hearing board decision is a “lawsuit.”

Providers and Residents contend that the appeal from the zoning hearing board to the common pleas court is a “lawsuit.” They contend inasmuch if they had chosen to challenge the Amendment in federal district court, they would be entitled to attorney’s fees, “it would be illogical not to award attorney’s fees simply because this is a zoning appeal that originated before a zoning hearing board.”

A lawsuit in Pennsylvania is a civil action commenced in a court of competent jurisdiction in accordance with and subject to the Pennsylvania Rules of Civil Procedure. Rule 1007 of the Pa.R.C.P. provides that an action is commenced by filing a praecipe for writ of summons, a complaint or an agreement of amicable action. To the contrary, a Notice of Appeal is not filed pursuant to the Pa.R.C.P. because the rules are inapplicable to all statutory appeals, including one from the zoning hearing board.

As the Supreme Court stated in Appeal of Churchill, 525 Pa. 80 , 575 A.2d 550, 553 (1990):

In those special actions where we have not incorporated the rules of civil procedure by reference, they cannot be mandatorily imposed upon the trial courts or parties who litigate such matters. Such is the case with tax assessment appeals, and, more generally, with all statutory appeals, and to this extent, our Commonwealth Court’s conclusion that the rules of civil procedure are inapplicable is correct, albeit for a different reason. (Emphasis added.)

A zoning Notice of Appeal then is not a lawsuit, but a statutory appeal filed pursuant to the MPC seeking the review of a zoning board action and cannot raise any issue not raised below. Moreover, it does not allow a judge to engage in fact finding, empanel a jury, award damages, 11 authorize discovery, enter judgments or grant injunctions. *683 A zoning appeal is just what it says — it is an appeal and not a lawsuit.

Correspondingly, under the federal rules, a Notice of Appeal is not a lawsuit. F.R.C.P. 2 provides that “There shall be one form of action to be known as ‘civil action.’ ” 12 F.R.C.P. 3 provides that “A civil action is commenced by filing a complaint with the court.” A Notice of Appeal neither “commences” nor is it a “civil action”, i.e., a lawsuit for which counsel fees can be awarded. To be cognizable as an action where Section 1988 counsel fees can be awarded, it has to be incurred in a lawsuit initiated by a complaint and in a trial where a jury can be impaneled, damages awarded or injunctive relief issued.

Moreover, the Supreme Court in Crest Street recognized that a claim initially brought before an administrative agency was not a lawsuit, and that the administrative review process was to be used to expeditiously resolve disputes rather than having to go to court to engage in “civil rights litigation” by stating:

“[Cjompetent counsel will be motivated by the interests of the client to pursue ... administrative remedies when they are available and counsel believes that they may prove successful.” An interpretation of Section 1988 cannot be based on the assumption that “an attorney would advise the client to forgo an available avenue of relief solely because Section 1988 does not provide for attorney’s fees____” (Citing Webb v. Dyer County Board of Education, 471 U.S. 234 , 241 n. 15, 105 S.Ct. 1923 , 1927 n. 15, 85 L.Ed.2d 233 , 241 n. 15 (1985)). Moreover, our holding creates a legitimate incentive for potential civil rights defendants to resolve disputes expeditiously, rather than risk the attorney’s fees liability connected to civil rights litigation.

479 U.S. at 14-15 , 107 S.Ct. at 341 . (Emphasis added.)

Because a zoning appeal to the common pleas court is part of the administrative agency process and not a lawsuit, *684 Providers and Residents are not entitled to attorney’s fees under either Section 1988 or the Fair Housing Act. The decision of the trial court is affirmed.

ORDER

AND NOW, this 3rd day of December, 1991, the order of the trial court is affirmed.

. The Amendment defines "group home” as:

A dwelling where room and board is provided to not more than five permanent residents, including and limited to dependent children, mentally retarded or physically handicapped persons of any age or elderly persons, 62 or more years of age, who are in need of supervision and specialized services and no more than two supervisors on any shift who may or may not reside in the dwelling and who provide health, social and/or rehabilitative services to the residents. The services shall be provided only by a governmental agency, its licensed or certified agents, or any other responsible non-profit or for a profit social services corporation. The facility shall meet all of the minimum requirements of the sponsoring agency, as well as the applicable requirements of the state, federal and local governments.

. The Amendment defines "personal care boarding home” as:

A facility licensed by the Commonwealth located within a dwelling where room and board is provided to not more than five permanent residents, 62 or more years of age, who are not relatives of the operators, and who are mobile or semi-mobile and require specialized services in such matters as bathing, dressing, diet and medication prescribed for self-administration for a period exceeding 24 consecutive hours, but who are not in need of hospitalization or skilled or intermediate nursing care. The facility shall provide 24 hour supervision by staff qualified by the sponsoring agency with supervising staff not to exceed two supervisors on any shift.

. Municipalities Planning Code of 1968, P.L. 608, as amended, 53 P.S. §§ 10101-11202. Subsequent to appeal to common pleas court, *678 § 1005 has been repealed. It has been replaced by § 916.1 of the MPC, 53 P.S. § 10916.1(b).

. The other contentions raised were that the Amendment violates the Pennsylvania Human Relations Act; is invalid as “special legislation" in that it is aimed directly at particular parcels and uses of property; the Amendment is not a proper zoning measure; constitutes de facto exclusionary zoning in that the Amendment as applied acts to prohibit “group homes” and "personal care boarding homes” throughout Mill-creek Township; is confiscatory and violates the Fifth and Fourteenth Amendments to the United States Constitution because it constitutes a taking of private property without just compensation; by prohibiting "group homes” and “personal care boarding homes” is arbitrary and capricious, and is not substantially related to the public health, safety, morals or general welfare; and otherwise constitutes an abuse of the Township’s legislative discretion and violates the Constitutions, Statutes and Regulations of the United States and of this Commonwealth.

. Only the Residents raised before the Zoning Hearing Board and in their Notice of Appeal that their Section 1983 rights were violated. Neither Residents nor Providers requested Section 1988 counsel fees in their Notice of Appeal. See Fitzgerald v. City of Philadelphia, 87 Pa.Commonwealth Ct. 482, 487 A.2d 485 (1985).

. Section 1983 was enacted by the Act of April 20, 1871, 42 Congress, Session 1, Chapter 22, 16 STAT. 13, and provides:

That any person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress, (Emphasis added.)

The enrolled bill then is immediately followed by the following clause:

*679 Such proceeding to be prosecuted in the several districts or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts ... (Emphasis added.)

This clause was codified and modified at 28 U.S.C. § 1343 . Because the Township has withdrawn its appeal, the issue of whether a zoning board or a court on an appeal from a zoning hearing board can entertain a Section 1983 action is not before us.

. Repealed and replaced by 53 P.S. § 11003(A).

. The Fair Housing Amendments Act of 1988, P.L. No. 100-430, 102 Stat. 1619 , 42 U.S.C. §§ 3601 , 3616, was enacted after the Zoning Hearing Board rendered its decision and after Providers and Residents filed their Notice of Appeal. It makes it unlawful to "discriminate" in the sale or rental or to otherwise make available or deny a dwelling to any buyer or renter because of a handicap. We do not address whether it was proper for the trial court to raise this issue, even though it was not contained in the Notice of Appeal.

. The Civil Rights Attorney’s Fee Act of 1976 added the last sentence to Section 1988.

. This rationale also applies to the Fair Housing Act, 42 U.S.C. § 3613 (a), providing that "An aggrieved person may commence a civil action in an appropriate United States District Court or state court ... to obtain ... relief.” The Act specifically requires a lawsuit to be filed in court to obtain relief.

. See Laskaris v. Thornburgh, 733 F.2d 260 (3rd Cir.1984).

. The Notes of the Advisory Committee provide that "Reference to actions at law or suits in equity in all statutes should be treated as referring to the civil action prescribed in these rules.”