Commonwealth, Bureau of Corrections v. City of Pittsburgh

PAPADAKOS, Justice, dissenting.

I must respectfully dissent because, in my view, the issues raised by the parties are prematurely considered. The City Council of the City of Pittsburgh, in considering applications for conditional uses, is required to comply with the formalities of the Local Agency Law, 2 Pa.C.S.A. § 553, 1 and enter an adjudication in compliance with § 555 2 *85 of said law. The Local Agency Law is applicable in such a case because, when the City Council acts on a conditional use application, Council is acting in an administrative, not a legislative, capacity. It has been held that the act of approving or disapproving a conditional use application establishes no rule of general application, as the passage of an ordinance does, and that City Council essentially is only approving or rejecting the issuance of a permit, nothing more. See, North Point Breeze Coalition v. City of Pittsburgh, 60 Pa.Commonwealth Ct. 298, 431 A.2d 398 (1981), which, I believe, sets out the law properly.

Such an administrative act is reviewable under the Local Agency Law which effectuates the clear constitutional intent that parties aggrieved by an administrative adjudication be provided the same opportunity to pursue relief as those aggrieved by a judicial determination. 3 North Point Breeze, supra. There is little question that Pittsburgh’s City Council, like its Zoning Board of Adjustment, is a local agency when it acts administratively, and that a resolution disposing of a conditional use application is an “adjudica *86 tion” within the meaning of the Local Agency Law. 2 Pa.C.S.A. § 101.

Among the formalities with which a local agency must comply is the requirement that it provide a hearing, notice thereof to any party, and an opportunity to be heard. 2 Pa.C.S.A. § 553. The local agency must then issue its adjudication in writing and support it with findings and reasons. 2 Pa.C.S.A. § 555. City Council has not done so in this case and, until it supplies the required hearing and adjudication, there is simply nothing for the courts to review.

As correctly noted by the trial court, the Commonwealth Court and the Majority, the scope of review from the grant or denial of a conditional use request, under the Pittsburgh Zoning Ordinance, is governed by 2 Pa.C.S.A. § 754 4 and is based on a review of the record as compiled by the local agency and a review of the findings made by the local agency to determine whether the findings are supported by substantial evidence. See, Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 , 462 A.2d 637 (1983);. North Point Breeze Coalition v. City of Pittsburgh, supra.

*87 I am hardpressed, from my review of this record, to find that any hearing was conducted by the local agency, that any notice of a hearing was given to any party in interest, that any opportunity to be heard in a formal hearing before the local agency was given to any party in interest, and that any findings or written decision was issued by City Council in support of its decision to deny this application. At the City Council meeting of April 30, 1984, a motion was made and seconded to pass the following resolution:

Resolution approving a conditional use under Section 993.01(a)A-10 of the Pittsburgh Code, Title Nine, Zoning Article V, Chapter 993, for authorization to occupy the existing structure located at 108-110 Miltenberger Street as an Institutional Facility to be used by the Pennsylvania Bureau of Corrections Community Services Division, as a Pre-Release Center for 24 convicted adult male State Prisoners, with supervision, on property zoned “C3” Commercial District, 1st Ward.

The motion was defeated with eight council members voting in the negative and zero voting in the affirmative. This vote represents the “adjudication” which triggers the present review under the Local Agency Law. The adjudication is not accompanied, however, by any findings of fact or reasons or even a record which Council compiled or adopted as its own at a hearing before it. At each level of review, an assumption has been made that City Council has acted based upon the recommendation of the City Planning Commission, but nowhere in the record is it indicated that City Council read this record, adopted the record and recommendations for its own, or that it relied on other reasons for denying the application. Nor is there any evidence that City Council appointed the City Planning Commission to conduct the hearing required by the Local Agency Law, 2 Pa.C.S.A. § 553.

While I agree in the Majority’s legal analysis of which party bears the burden of establishing that a proposed use would be detrimental to the public interest, I feel that such an inquiry is premature.

*88 In its analysis of this case, the Majority has reviewed, and referred to, the record compiled before the City Planning Commission and has determined that the evidence presented by the objectors to the Planning Commission did not rise to the level of substantial evidence to support their burden. Nowhere in statutory or case law do I find that objectors must meet this burden before a Planning Commission that has no adjudicative powers, but can only recommend to the governing body.

The Majority, today, determines that the Supreme Court of Pennsylvania will henceforth review the recommendations of a Planning Commission which has no adjudicative powers to determine whether substantial evidence exists to support the recommendations. Gone are the days when due process required that every aggrieved party whose property rights were implicated was entitled to a hearing, after notice, before an adjudicative body.

In this case, there has never been a hearing before an adjudicative body. The only “hearing” held was before the Planning Commission, a non-adjudicative body which can only make recommendations. No hearing was held before City Council which was acting as a Zoning Board and not a legislative body. The parties were not given notice of a hearing before the City Council, acting as a Zoning Board. The parties were not afforded their constitutional right to be heard by City Council, acting as a Zoning Board, an adjudicative body as contemplated in the Local Agency Law.

I fear my brethren have short-circuited the system and given their imprimatur upon the denial of due process by the Pittsburgh City Council to all aggrieved property owners in conditional use applications. Henceforth, all Zoning Boards in Pennsylvania may avoid hearings and merely rely upon the recommendations of their municipal planning commissions where provided as an initial step in the zoning process. All this in the name of waiver. It seems the parties never raised the total lack of compliance with the Local Agency Law and have deprived themselves of the *89 right to be heard. Perhaps the Majority is correct. I believe that the agency has an affirmative duty to provide a hearing, and notice thereof, as mandated by the Local Agency Law and, until it does so, there is nothing for any Court to review.

I would remand to City Council for a full hearing, with proper notice, and an opportunity for any objectors to present their evidence to the agency.

. 2 Pa.C.S.A. § 553 provides:

*85 § 553. Hearing and record

No adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony may be stenographically recorded and a full and complete record may be kept of the proceedings. In the event all testimony is not stenographically recorded and a full and complete record of the proceedings is not provided by the local agency, such testimony shall be stenographically recorded and a full and complete record of the proceedings shall be kept at the request of any party agreeing to pay the costs thereof.

1978, April 28, P.L. 202, No. 53, § 5, effective June 27, 1978.

. 2 Pa.C.S.A. § 555 provides:

§ 555. Contents and service of adjudications

All adjudications of a local agency shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or by mail.

1978, April 28, P.L. 202, No. 53, § 5, effective June 27, 1978.

. Article V, Section 9, of the Pennsylvania Constitution provides in pertinent part:

There shall be a right of appeal ... from an administrative agency to a court of record or to an appellate court, the selection of such court to be provided by law.

. 2 Pa.C.S.A. § 754 provides:

§ 754. Disposition of appeal

(a) Incomplete record. — In the event a full and complete record of the proceedings before the local agency was not made, the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.

(b) Complete record. — In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals.)