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Solicitor's Commentary

 

PENNBOC, recognizing that a recent Commonwealth Court decision may impact some of the municipalities its members serve, has asked its Solicitor, Khervin Smith, to review the decision and offer a commentary on the decision's salient points. Khervin's commentary follows:

 


Opinion of Counsel

Regarding the Commonwealth Court of Pennsylvania

“Middletown Township v.

County of Delaware Uniform Construction Code Board of Appeal.”

The Middletown Township (TWP) denied Sara Caldwell an occupancy permit for a building.  She appealed the denial to the Delaware County Uniform Construction Code Board of Appeals (Board).  The board sustained her appeal.  The TWP appealed the Board’s decision to the trial court (Court of Common Pleas of Delaware County).  Sara petitioned the trail court to quash the TWP’s appeal.   The trial court granted Sara’s petition to quash the appeal based on the fact the TWP did not properly designate the Board to hear appeals from determinations that the Township’s officials made in administering and enforcing Section 501(b)(3)-(4) of the Uniform Construction Code Act (Act).  Commonwealth Court affirmed the trail Court’s decision.

Commonwealth Court’s decision holds “Because the Board was without jurisdiction to hear appeals from determinations made under the Act, we modify the trial court’s order to vacate the order of the Board, as the trial court properly concluded that the Board was without jurisdiction to render its decision. The net effect of determining that the Board lacked jurisdiction to hear Caldwell’s appeal is that the Township’s denial of Caldwell’s occupancy permit remains in place, and there is not a properly constituted board of appeals to hear her appeal. While we are perplexed by this outcome because no one “wins,” we will leave the matter to be sorted out below, which, hopefully, will not be the subject of another appeal.”  

The reason why the board was without jurisdiction was it was not properly formed nor could the TWP delegate its authority without delegation of its administration as required by 35 P.S. §7210.501(c)(1).

 A municipality which has adopted an ordinance for the administration and enforcement of this act or municipalities which are parties to an agreement for the joint administration and enforcement of this act shall establish a board of appeals as provided by Chapter 1 of the 1999 BOCA National Building Code, Fourteenth Edition, to hear appeals from decisions of the code administrator. Members of the municipality's governing body may not serve as members of the board of appeals.

There is a minority decision written by Judger Simpson and joined by J. Leadbetter and J. Cohn Jubelier that would reverse common pleas decision and remand for a decision on the merits.  I suggest a through read of this decision to view that great minds may differ.  However, this was a 4 to 3 decision that will stand unless someone appeals this decision to the Pa. Supreme Court.

The majority decision means that all the municipalities that have delegated the enforcement must also delegate the administration of the Act.  “…., §89-4(C) only provides that the Township can enter into an intergovernmental agreement for the entire “administration and enforcement of the Act,” and is not à la carte authorization to designate a board to only hear appeals.” (Middletown v. Delaware Uniform Cons. Code Bd of Appeal, P.8)

Also, the delegation must be by ordinance not by resolution.  “Outside of the Code and the Act, the ICA provides that that delegation of a municipality’s power to another municipality must be done by ordinance.” (Id. at P.9)

While this decision may cause concern among municipalities that have delegated enforcement authority to other agencies but not the administration they should not act in haste.  I strongly suggest consulting with your solicitor to determine the necessary legal alternatives to solve this procedural matter. 

The point to remember is the decision does not prohibit you from delegation or formation of your own appeals board but highlights the method or path to follow.

 

Khervin D. Smith, Esquire

 

By Admin
Thu, 17 May 2012 18:03:21

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