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Zoning board deliberations not open in Pennsylvania

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Zoning board deliberations not open in Pennsylvania

  • The state Supreme Court ruled that the deliberations of a zoning board in resolving disputes are not open to the public under the Commonwealth’s Sunshine Act because the board serves a quasi-judicial function.

Nov. 10, 2003 — Zoning board members in Pennsylvania may conduct their deliberations outside of public view, the state’s Supreme Court ruled last month. The ruling came in a case brought by homeowners who sought access to board deliberations over the proposed expansion of communications towers in their neighborhood.

Because the boards perform a quasi-judicial, or court-like, function in adjudicating zoning disputes, their deliberations are exempt from the Commonwealth’s Sunshine Act, the court ruled unanimously Oct. 27.

The act provides for a closed executive session when deliberations, “if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law.” The Supreme Court, in overturning an appellate court decision, held that the deliberations of a zoning board fit this definition.

The appeals court held that in order to comply with the Sunshine Act, the zoning board must show that a public deliberation would lead to the disclosure of information protected by law before it can go into closed session.

The Supreme Court further based its decision on the “emotional rancor” that often accompanies zoning board disputes, and the need to maintain collegiality among the board members in such an environment. The high court distinguished the solely quasi-judicial function of zoning boards from municipal governing bodies that perform both legislative and quasi-judicial functions.

Still, Robert Clothier, a Pennsylvania media attorney, said he is concerned about the ramifications of the court’s opinion. By recognizing a privilege for deliberations, he says, the court may have opened the door for other government bodies to conduct their public business in private.

“It is really inconsistent with what the legislature intended and what a Sunshine Act is,” Clothier said. While the scope of court’s decision is not very broad, he added, other agencies may still try to use it to close otherwise open meetings.

The lawsuit was brought by Upper Milford Township homeowners who were upset with the number of communications towers in their community. The homeowners contested a request by the Pennsylvania Turnpike Commission to build towers taller than allowed by the zoning rules.

The zoning board conducted a hearing at which both sides presented evidence and their arguments. The board took a recess, then returned to the hearing room and voted to grant the commission a variance to build its oversized towers.

The homeowners filed suit, claiming the zoning board members deliberated and determined how they would vote during their recess, in violation of the Sunshine Act. The trial court dismissed the lawsuit in June 2000, but that decision was reversed by the Commonwealth Court, a court of appeals, in July 2001.

(Kennedy v. Upper Milford Township Zoning Hearing Board) GP

© 2003 The Reporters Committee for Freedom of the Press

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