Can a Zoning Hearing Board Issue An Advisory Opinion ?
In H. R. Miller Co., Inc. v. Bitler, 21 Pa. Commw. 466, 346 A.2d 887 (Pa. Cmwlth. 1975), this Court addressed the power of a zoning hearing board to issue an advisory opinion.
In that case, Miller requested a hearing before a zoning board to resolve certain questions of law and fact relating to its quarrying activities.
To that end, Miller submitted five questions to be addressed by the board.
After extensive hearings on the matter, the board issued a decision addressing each of the five submitted questions and deciding each adversely to Miller.
Thereafter, Miller applied for permits to expand its quarrying activities, and they were refused by the board. In response, Miller filed an action in mandamus to compel the issuance of the permits.
Miller argued that because the board had issued its opinion on the five submitted questions 98 days after the last day of hearing, the opinion was not timely rendered.
Accordingly, the questions had to be deemed approved in favor of Miller.
This Court held that the zoning board lacked authority to issue the advisory opinion requested by Miller.
The Court explained that under Section 909.1(a) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. 10909.1(a), zoning hearing boards are charged to render final adjudications on:
(1) challenges to the validity of a zoning ordinance;
(2) appeals of the grant or denial of a permit, a variance or a special exception. Miller, 346 A.2d at 888.
The board lacked jurisdiction to resolve Miller's questions in the abstract; it could act only when Miller sought and was refused a permit.