IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Penelope Helenski, :

Appellant :

 :

 :

v. : No. 973 C.D. 2018

 : Submitted: April 9, 2019

Upper Merion Township :

Zoning Hearing Board :

:

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge (P.)

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: May 2, 2019

Penelope Helenski (Landowner) appeals from the June 7, 2018 Order of the 

Court of Common Pleas of Montgomery County (common pleas), which affirmed 

the Notice of Decision of the Upper Merion Township (Township) Zoning Hearing 

Board (ZHB), mailed October 19, 2017, denying Landowner’s appeal of a Notice of 

Violation dated September 28, 2015, that she was using her property in violation of 

Section 165-59 of the Township Zoning Ordinance of 1942, as amended (Township 

Code). Landowner argues that she satisfied her burden of proof establishing her 

entitlement to a variance by estoppel so that the use of her property, zoned 

residential, for the storage of vehicles and equipment was not in violation of the 

Township Code. Landowner further argues that her application for a variance by 
2

estoppel should have been deemed approved because the ZHB did not issue a timely 

written decision in accordance with Section 908(9) of the Pennsylvania

Municipalities Planning Code (MPC), 53 P.S. § 10908(9).1 For the reasons that 

follow, we disagree and affirm.

I. Factual Background

A. Notice of Violation

Landowner is the owner of property (the Property) located in the Township, 

which is improved with a single-family detached dwelling and garage. The Property 

is located in the R-3 Residential District of the Township. The Property is deeply 

recessed from the street, the rear of the Property contains “heavy vegetation,” and a 

neighboring townhouse community installed a privacy fence and planted trees 

adjacent to the Property. (ZHB Decision, November 16, 2017, Finding of Fact 

(FOF) ¶¶ 2, 4 (ZHB Decision II).) On September 16, 2015, following complaints 

from neighbors about the Property and issuance of a permit to construct a roof on 

the garage at the Property, the Township’s Chief Building Official and Zoning 

Officer (Zoning Officer) inspected the Property. On September 28, 2015, Zoning 

Officer issued a Notice of Violation to Landowner, alleging that the Property was in 

violation of Section 165-59 of the Township Code regarding use regulations in that 

the Property was “being used as a storage yard for construction vehicles, 

construction equipment, miscellaneous materials, trailers and unregistered 

vehicles.” (Supplemental Reproduced Record (S.R.R.) at 145b.) The Notice of 

 

1 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(9). Section 908(9) of the 

MPC provides, in relevant part, that “[t]he board or the hearing officer, as the case may be, shall 

render a written decision or, when no decision is called for, make written findings on the 

application within 45 days after the last hearing before the board or hearing officer.” 53 P.S. 

§ 10908(9).
3

Violation advised Landowner that she had to bring the Property into compliance 

within 30 days by removing all vehicles and equipment that did not comply with the 

Township’s Code on use regulations, including the removal of “construction trailers 

and vehicles, storage and stockpiling of construction materials and equipment.” (Id.) 

The Notice of Violation stated that the Property was not to have the “outside 

appearance of a storage yard/business use.” (Id.) Landowner appealed the Notice 

of Violation to the ZHB and a hearing was held.

B. First ZHB Hearing

At the hearing, Zoning Officer testified that during his inspection of the 

Property he observed “an abundance of material, equipment,” and “vehicles 

surrounding the outside of the garage,” such as a “dump truck, pickup trucks, trailers, 

backhoe buckets,” and “construction equipment.” (Id. at 25b-26b.) Photographs 

Zoning Officer and another inspector took on January 13, 2016, of the Property and 

the equipment and vehicles on it were entered into evidence. (Id. at 27b-31b;

Photographs, id. at 195b-206b.)

Landowner’s son (Son) testified that he lived at the property for 25 years 

beginning in 1974. Son testified that his father (Father), who is now deceased, 

collected trucks and trailers at the Property as part of the commercial truck 

equipment repairs and support of mechanical contractors that he did to earn a living. 

There were commercial vehicles stored on the Property, Son testified, “[e]very day[,] 

[s]even days a week.” (S.R.R. at 106b.) Father continued to use the Property in this 

fashion up until his death in 2004. Although, according to Son, following Father’s 

death, the Property was no longer being used for a commercial business, the vehicles 

and equipment, which Son inherited, continued to remain on the Property. Son 
4

testified that 30 days after January 13, 2016, the day when Zoning Officer 

photographed the Property, he had removed only pieces of metal roofing and plastic 

barrels.

During the course of Son’s testimony, Township Solicitor (Solicitor)

precluded Landowner from presenting any evidence that she had acquired a variance 

by estoppel.

C. The ZHB’s First Decision, Landowner’s Appeal to Common Pleas, 

and Remand to the ZHB

By letter mailed on May 19, 2016, one day after the hearing in front of the 

ZHB concluded, Solicitor provided notice to Landowner’s Counsel that the ZHB 

had voted to deny Landowner’s appeal from the Notice of Violation. The letter 

indicated that an opinion with findings of facts, conclusions of law, and reasons 

would follow, and that the 30-day time period within which Landowner had to 

appeal began to run “on the date of entry (mailing) of this notice of decision” (Notice 

of Decision). (Reproduced Record (R.R) at 390a.)

On June 16, 2016, Landowner filed an appeal with common pleas from the 

Notice of Decision.

On July 26, 2016, the ZHB mailed an Opinion and Order with findings of fact 

and conclusions of law explaining its reasons for denying Landowner’s appeal

(ZHB’s First Decision).

On February 13, 2017, common pleas vacated the Notice of Decision and 

remanded the matter to the ZHB, ordering it to hold an evidentiary hearing so that 

Landowner could present the testimony of an expert planner and Son on the 

Township’s alleged active acquiescence in defense against the Notice of Violation 
5

and for the ZHB to determine whether Landowner had met her burden of establishing 

a variance by estoppel.

D. The Remand Hearings before the ZHB2

At the remand hearings, Landowner presented the testimony of her expert 

Land Planner and Son and had a number of documents entered into evidence.

Land Planner testified that he had reviewed the Township’s file for the 

Property, which contained 5 permits for the Property: a June 13, 1973 permit to 

construct a garage as an accessory to a proposed dwelling; a July 26, 1974 permit 

for the construction of a single-family dwelling; a July 26, 1974 use and occupancy 

permit application for the single-family dwelling; a January 2, 1979 permit 

application to enclose the existing foundation for the garage area adjoining the 

existing garage; and a June 6, 2003 use and occupancy permit and associated 

application for a sunroom. Land Planner also reviewed aerial photographs of the 

Property taken by the Delaware Valley Regional Planning Commission that depicted 

the Property in five-year intervals beginning in 1965 and ending in 2010. Land 

Planner testified that in reviewing these photographs, they showed that in 1965, the 

Property was “vacant and wooded,” and that in 1975 the Property had been cleared 

and the single-family dwelling and garage were under construction. (R.R. at 165a, 

172a.) While, in the 1975 photograph, and continuing to the last photograph in 2010, 

Land Planner could identify other items around the Property, he could not 

specifically identify the nature of those items. Based on Land Planner’s review of 

the Township file and the photographs, he concluded that the Property was being 

used for more than just residential purposes. Land Planner testified that it was his 

 

2 Hearings were held over three dates, while oral argument was held on a fourth date.
6

opinion, based on his experience, that the Property may have been inspected as part 

of the permitting process. However, Land Planner acknowledged on crossexamination that he did not know whether, in fact, the Property had been inspected 

when the permits were issued.

During cross-examination of Land Planner, he was shown a January 25, 1974 

letter (1974 Letter) from William Keil, Building Official for the Township, to Father

advising him that the permit to construct a garage “did not entitle [him] to make a 

junk yard or storage area for abandoned vehicles.” (Id. at 196a, 475a.) Keil advised 

Father that he was in violation of the Township Code that regulated the storage of 

abandoned and junked vehicles and, therefore, in order to avoid legal action, he 

should remove all abandoned vehicles and parts from the Property within 30 days of 

the letter. (Id. at 475a.)

Son, claiming to be a co-owner of the Property, testified that during the course 

of the construction of the garage, the Township inspected it. Specifically, “[e]very 

time we had to have an open call for an inspection, I remember it being correctly 

done.” (Id. at 219a (emphasis added).) The purpose of the garage, Son testified, 

was for Father to make a living as a mechanic, and Father “most certainly” intended 

to use the garage for that purpose. (Id.) “[F]rom day one,” Son testified, Father

stored items, such as a commercial truck, dump truck, and trailers, on the Property. 

(Id. at 220a.) Once the initial construction of the garage was completed, Father

started constructing the house. Son testified that he recalled that during the 

construction of the home the Township conducted inspections because Son “was 

present,” as Father was at work. (Id. at 222a, 225a.) When the 1979 permit was 

issued to enclose part of the garage, Son testified, he again recalled Township

officials were on the Property inspecting the garage because it involved “masonry 
7

construction.” (Id. at 230a-31a.) At that time, Son testified, Father continued “to 

collect things and/or scrap them out” on the Property. (Id. at 231a.) In 2003, when 

the sunroom was constructed, which was done by Better Livings Homes, the 

Township, Son testified, would have been required to inspect the Property. Again, 

Son testified, Father continued to collect vehicles and equipment and store them on 

the Property. On cross-examination, Son acknowledged that for the garage and 

house inspections, while “they were conducted,” he was “present for [only] some of 

them.” (Id. at 255a.) Son could not recall the dates when he was present.

After the conclusion of the presentation of evidence, at oral argument on the 

appeal, Landowner’s Counsel, when asked by Solicitor what proof there was in the 

record as to the money Landowner would have to expend to undo the “presumably 

lawfully permitted improvements,” Counsel answered that there was “no specific 

testimony that says what the dollar figure is.” (Id. at 300a-01a.) Counsel added that 

he was relying on what Zoning Officer stated Landowner would have to do in order 

to have the Property in compliance with the Township Code, which “implie[d] a 

substantial amount of money for a woman who lives in the house by herself.” (Id.

at 301a.)

E. The ZHB’s Second Decision

By letter dated October 19, 2017, following the conclusion of the hearings 

before the ZHB on October 4, 2017, Solicitor informed Landowner’s Counsel that 

the ZHB had voted to deny Landowner’s appeal. (Id. at 518a.) Solicitor noted that 

the ZHB would subsequently issue findings of facts, conclusions of law, and reasons 

for its decision.
8

In the ZHB’s Second Decision, mailed on November 16, 2017, the ZHB again 

denied Landowner’s appeal. The ZHB concluded that Landowner had failed to 

establish that she acquired a variance by estoppel. (ZHB Decision II, Conclusion of 

Law (COL) ¶ 8.) The ZHB noted that in order to acquire a variance by estoppel, 

Landowner had to establish the following:

1. A long period of municipal failure to enforce the law, when the 

municipality knew or should have known of the violation, in 

conjunction with some form of active acquiescence in the illegal 

use. However, a mere showing that a municipality has failed to 

enforce the law for a long period of time is insufficient in itself to 

support the grant of a variance.

2. Whether the landowner acted in good faith and relied innocently 

upon the validity of the use throughout the proceedings. But in 

assessing whether a landowner’s reliance upon municipal inaction 

is reasonable, a landowner is duty bound to check the property’s 

zoning status before purchase.

3. Whether the landowner has made substantial expenditures in 

reliance upon his belief that his use was permitted.

4. Whether the denial of the variance would impose an unnecessary 

hardship on the applicant, such as the cost to demolish an existing 

building.

(ZHB Decision II at 19-20 (citing Mucy v. Fallowfield Twp. Zoning Hearing Bd. of 

Washington Cty., 609 A.2d 591, 592 (Pa. Cmwlth. 1992)).) The ZHB concluded 

that Landowner failed to establish any of the elements of a variance by estoppel.

First, the ZHB found, Landowner failed to demonstrate that the Township 

knew or should have known of her illegal use of the Property or that the Township 

actively acquiesced in her illegal use of the Property. (ZHB Decision II at 21.) The 

evidence demonstrated that Father or contractors performing work on the Property 
9

consistently represented that the Property was being used for residential purposes, 

i.e., “a single-family detached home, with an accessory garage.” (Id. at 21-22.) The 

ZHB noted that the Property was “a deep property, accessed from [the] [s]treet,” and

that the dwelling blocked the view of the rear of the Property where the illegal use 

was occurring, while heavy vegetation in the rear and a privacy fence and trees to 

the side further blocked view of Landowner’s illegal use. (Id. at 22.) Land Planner, 

the ZHB found, admitted that he had no knowledge of whether an inspection would 

have been required for any of the permits that were issued, nor whether, in fact, any 

inspection occurred. (Id.) As for Son, the ZHB found that his testimony that 

inspections had occurred was “self-serving, inconsistent, and unsubstantiated.” (Id.) 

The ZHB highlighted that while initially Son testified that inspections had occurred, 

“he contradicted himself throughout his testimony and was unable to recall specifics 

of the inspections.” (Id.) In particular, on cross-examination, the ZHB found, Son 

“contradicted his [earlier] testimony” when he acknowledged that he was not present 

for every inspection. (FOF ¶ 18e.) Moreover, the ZHB noted, Son never testified 

who at the Township performed inspections of the Property. (ZHB Decision II at 

23.) In any case, even if Son had identified the Township officials who had inspected 

the Property, “mere knowledge by a few individual officials of an impermissible use 

is insufficient to grant a variance by estoppel” and “knowledge by a few individual 

officials cannot be imputed to the [T]ownship.” (Id. at 22 (citing Mucy, 609 A.2d at 

593).)

Second, the ZHB found that Landowner did not establish that she acted in 

good faith. (Id. at 23.) Landowner, the ZHB found, knew that the Property was 

zoned only for residential use. In fact, the 1974 Letter was sent to Father informing 

him that his storage of vehicles on the Property was illegal. (Id.) Nevertheless, 
10

“[S]on’s testimony established that this was unimportant to Landowner.” (Id.) 

Moreover, again noting that the illegal use of the Property was not visible from the 

street, the ZHB found that “Landowner hid the illegal use of the Property from the 

Township.” (Id.)

Third, the ZHB found that Landowner did not make any expenditures, let 

alone ones that were substantial, in reliance upon her belief that her illegal use of the 

Property was permitted. The expenditures on the Property, the ZHB noted, including 

the permits that were issued, all related to the residential use of the Property. (Id. at 

24.) In addition, Landowner admitted, through her attorney, that she had presented 

no evidence that she or Father expended a substantial sum of money in reliance on 

their belief that their illegal use of the Property was permitted. (Id.)

Fourth, Landowner failed to show that the denial of a variance by estoppel 

would impose an unnecessary hardship. The ZHB noted that in order to bring the 

Property into compliance with the Township Code, Landowner would not have to 

demolish any structures. All she needed to do was cease her illegal use of the 

Property as a storage yard for vehicles and equipment. (Id.)

Given the foregoing, the ZHB determined that Landowner had not met her 

burden of proof showing her entitlement to a variance by estoppel. (COL ¶ 8.) 

Therefore, the ZHB concluded, Zoning Officer properly cited Landowner for using 

the Property as a storage yard in violation of the Township Code, and the ZHB 

denied Landowner’s appeal. (Id. ¶¶ 4-7.)

F. Appeal to Common Pleas

Landowner appealed to common pleas, arguing that she had met her burden 

of proof establishing her entitlement to a variance by estoppel. In addition,
11

Landowner argued her application for a variance by estoppel should be deemed 

approved because the ZHB did not issue its first decision with written findings of 

fact until July 26, 2016, which was 68 days after the last hearing on May 18, 2016, 

in violation of Section 908(9) of the MPC, which requires the ZHB to “render a 

written decision or, when no decision is called for, make written findings on the 

application within 45 days after the last hearing before the board or hearing officer.” 

53 P.S. § 10908(9).

Common pleas denied Landowner’s appeal and affirmed the ZHB’s Second 

Decision. Mirroring much of the ZHB’s analysis of Landowner’s claim to a variance 

by estoppel, common pleas determined that there was substantial evidence to support 

the ZHB’s Second Decision denying Landowner’s application for a variance by 

estoppel, and that the ZHB did not commit an error of law or abuse its discretion. 

(Common Pleas Opinion at 6.) As for the timeliness of the ZHB’s First Decision, 

common pleas held that the Notice of Decision the ZHB issued on May 19, 2016, 

one day after the hearing concluded on May 18, 2016, satisfied the requirements of 

Section 908(9) of the MPC. (Id. at 3-4.)

II. Appeal to this Court

On appeal, Landowner raises two issues for our consideration: first, that she 

established her entitlement to a variance by estoppel; and second, that the ZHB’s 

First Decision was not timely issued in accordance with Section 908(9) of the MPC.
12

A. Variance By Estoppel

1. Arguments of the Parties

Landowner argues that she met her burden of proof on each of the elements 

of variance by estoppel. First, she showed that because the Township issued a

variety of permits for the Property and, as a result, would have been required to 

inspect the Property at a time when it was being used as a storage yard for vehicles 

and equipment, the Township knew of Landowner’s illegal use of the Property.

Second, Landowner asserts that Son “testified that he relied in good faith that the 

uses being conducted on the Property were valid and legal.” (Landowner’s Brief

(Br.) at 27.) Landowner claims that the illegal use of the Property was not hidden 

from the Township but open. Third, Landowner contends that she expended 

substantial sums of money in improving the garage and home in reliance upon her 

belief that the use of the Property was legal. Fourth and finally, Landowner claims 

that to enforce the Township Code now would create an enormous hardship because 

“the requirement to now dismantle and remove the structures, vehicles[,] and 

material from the Property will be a large financial burden.” (Id. at 28.)

The ZHB and the Township (collectively, the Township) argue that this Court 

should affirm common pleas’ Order affirming the ZHB’s denial of the request for a 

variance by estoppel for the reasons the ZHB found, as Landowner failed to meet 

any of the elements necessary for granting a variance by estoppel.

2. Discussion

We begin by noting “that variance by estoppel is an unusual remedy under the 

law and is granted only in the most extraordinary of circumstances.” Skarvelis v. 

Zoning Hearing Bd. of Borough of Dormont, 679 A.2d 278, 281 (Pa. Cmwlth. 1996). 
13

In order to be entitled to a variance by estoppel, Landowner had to establish, by 

“clear, precise and unequivocal evidence,” Pietropaolo v. Zoning Hearing Board of 

Lower Merion Township, 979 A.2d 969, 980 (Pa. Cmwlth. 2009), the following 

elements:

1. A long period of municipal failure to enforce the law, when the 

municipality knew or should have known of the violation, in 

conjunction with some form of active acquiescence in the illegal 

use. However, a mere showing that a municipality has failed to 

enforce the law for a long period of time is insufficient in itself to 

support the grant of a variance.

2. Whether the landowner acted in good faith and relied innocently 

upon the validity of the use throughout the proceedings. But in 

assessing whether a landowner’s reliance upon municipal inaction 

is reasonable, a landowner is duty bound to check the property’s 

zoning status before purchase.

3. Whether the landowner has made substantial expenditures in 

reliance upon his belief that his use was permitted.

4. Whether the denial of the variance would impose an unnecessary 

hardship on the applicant, such as the cost to demolish an existing 

building.

Mucy, 609 A.2d at 529. Since the parties did not present any additional evidence

before common pleas, “our review is limited to determining whether the ZHB 

committed an abuse of discretion or an error of law.” Pietropaolo, 979 A.2d at 976. 

In conducting our review, we “may not substitute [our] interpretation of the evidence 

for that of the ZHB. It is the function of a ZHB to weigh the evidence before it.” Id.

(citations omitted). It is the ZHB that “is the sole judge of the credibility of witnesses 

and the weight afforded their testimony.” Id. Provided there is substantial evidence 
14

in the record to support the ZHB’s findings, “we are bound by the ZHB’s findings 

that result from resolutions of credibility and conflicting evidence.” Id.

Applying these principles here, Landowner failed to establish by clear, 

precise, and unequivocal evidence that the Township knew or should have known of 

her illegal use of the Property and actively acquiesced in the illegal use. 

Landowner’s theory was that the Township knew of her illegal use of the Property 

because the Township would have been required to inspect the Property in 

connection with the permits it issued to her. The difficulty for Landowner, however, 

is that the ZHB concluded that Landowner failed to carry her burden showing that 

these inspections did occur, which conclusion turned on the ZHB’s assessment of 

Son’s testimony. The ZHB discredited Son’s testimony that the Township inspected 

the Property when the permits were issued because he contradicted himself, stating 

that “[e]very time” an inspection was done, he was present and it was done correctly, 

but then stated that he was not present for all of the inspections. (R.R. at 219a, 255a.) 

Since the ZHB’s determination discrediting Son on whether the Property was 

inspected is supported by substantial evidence, we have no basis to disturb it. 

Similarly, Landowner fares no better in relying on Land Planner’s testimony since 

he did not know, in fact, whether the Property was inspected and his opinion that it 

may have been inspected was based only on his past experience as a land planner 

and zoning officer. Moreover, as the ZHB noted, even if Landowner had been able 

to establish that some Township officials knew of her illegal use of the Property, 

“mere knowledge by a few individual officials of an impermissible use is insufficient 

to grant a variance by estoppel” and “knowledge by a few individual officials cannot 

be imputed to the [T]ownship.” Mucy, 609 A.2d at 593. In any case, even when it 

came to the Township’s attention that Father was illegally using the Property to store 
15

vehicles, the Township issued the 1974 Letter directing Father to cease doing so. 

Thus, when the Township was aware that Landowner was illegally using the 

Property, it did not actively acquiesce to that use. At best, all Landowner showed 

was that the Township failed to enforce the law from 1974 until 2015, but that is 

insufficient to show active acquiescence. Rather, the Township had to do “more 

than passively stand by,” it had to “have committed some affirmative act, such as 

granting a building permit, which would reasonably lead a property owner to 

conclude that the proposed use was sanctioned under the law.” Skarvelis, 679 A.2d 

at 281; see Knake v. Zoning Hearing Bd. of Dormont, 459 A.2d 1331, 1333 (Pa. 

Cmwlth. 1983) (property owner acquired variance by estoppel where the 

municipality did not act for 44 years, the municipality had actual knowledge of the 

illegal use, and the zoning officer approved a permit application despite knowing of 

the illegal use). For these reasons, Landowner did not satisfy her burden of proof on 

the first element of variance by estoppel.

Landowner also failed to establish that she acted in good faith upon her belief 

that her use of the Property was legal. The 1974 Letter put Landowner and Father 

on notice that use of the Property as a storage yard was not permitted. Spargo v. 

Zoning Hearing Bd. of the Municipality of Bethel Park, 563 A.2d 213, 217-18 (Pa. 

Cmwlth 1989) (court questioned the good faith of property owner, a dentist, who 

was permitted to conduct his practice as a secondary use to the residential use of the 

property, but expanded that secondary use to where it was no longer secondary by 

hiring more assistants in violation of the zoning law and making $20,000 in 

renovations to the property). Further, as the ZHB noted, while all of the permits 

Landowner obtained were for residential uses, Son testified that Father “most 

certainly” intended to use the Property to work on vehicles. (R.R. at 219a.) Thus, 
16

Landowner did not act in good faith, but intended to use the Property for an illegal 

use in defiance of the uses the Township permitted on the Property. Landowner 

argues that a property owner would not continue to apply for permits knowing that 

the property was being used for an illegal purpose, especially when an application 

for a permit would result in the Township inspecting the property. Landowner’s 

argument, however, is sheer speculation, particularly given Son’s testimony that 

Father intended to use the Property for an illegal use in defiance of the uses the 

Township permitted on the Property. Therefore, the evidence showed that 

Landowner did not believe that the use of the Property as a storage yard was legal 

or that she acted in good faith. As such, Landowner did not establish the second 

element of variance by estoppel.

Landowner next failed to establish that she made substantial expenditures in 

reliance upon her belief that the use of the Property as a storage yard was permitted. 

Landowner argues that she would have to expend a substantial sum of money to 

“dismantle and remove the structures, vehicles and material from the Property.” 

(Landowner’s Br. at 28.) Landowner, however, does not specify what structures 

would have to be removed. The only structures on the Property are a single-family 

dwelling and garage, both of which are permitted on the Property as they are for 

residential uses. The vehicles and material would have to be removed, as the Zoning 

Officer advised Landowner, in order to bring the Property into compliance with the 

Township Code. As Landowner conceded during argument before the ZHB, 

Landowner did not provide any evidence on the dollar figure to remove the vehicles 

and material on the Property, and could only argue that it would be “a substantial 

amount of money” given what the Zoning Officer advised Landowner. (R.R. at 

301a.) The arguments of Landowner’s Counsel, of course, are not evidence. Good 
17

Tire Serv. v. Workers’ Comp. Appeal Bd. (Wolfe), 978 A.2d 1043, 1048 n.3 (Pa. 

Cmwlth. 2009). Therefore, there was no evidence, let alone evidence that was 

“clear, precise and unequivocal,” showing that Landowner made substantial 

expenditures in reliance upon her belief that the use of the Property as a storage yard 

was permitted. Pietropaolo, 979 A.2d at 980.

Finally, Landowner did not establish that denial of a variance by estoppel 

would impose an unnecessary hardship on her. In order to establish unnecessary 

hardship, Landowner was required to “show more than a mere economic or personal 

hardship.” Id. Landowner had to “prove that the hardship is unique to the [P]roperty 

and that the zoning restriction sought to be overcome renders the [P]roperty 

practically valueless.” Id. (citation and emphasis omitted). In Hafner v. Zoning 

Hearing Board of Allen Township, 974 A.2d 1204, 1208-09 (Pa. Cmwlth. 2009), the 

property owner had been using his property to operate two businesses, in violation 

of the local zoning law, and as a residence. We held that the property owner did not 

prove unnecessary hardship because while the “denial of the variance may result in 

some economic loss, . . . [the property owner’s] personal residence is on the property 

and he felt he could use the garages for storage.” Id. at 1213. The same is true here. 

Landowner has been and continues to reside at the Property in the single-family 

dwelling and can use the garage for storage. Id.; see also Peitropaolo, 979 A.2d at 

980 (concluding that unnecessary hardship was not shown since the property owner 

and his wife reside on the property and can use the garage for storage). Denial of a 

variance by estoppel does not render the Property practically valueless; rather, 

Landowner can continue to use the Property for residential purposes.

For all these reasons, we conclude that common pleas properly affirmed the 

ZHB as Landowner failed to establish her entitlement to a variance by estoppel.
18

B. Timeliness of the ZHB’s First Decision

1. Arguments of the Parties

Landowner next argues that the ZHB’s First Decision was not timely issued 

in violation of Section 908(9) of the MPC because it was not mailed until “almost 

68 days after the final hearing.”3 (Landowner’s Br. at 29-30.) Contrary to common 

pleas’ conclusion, Landowner argues, the ZHB did not satisfy Section 908(9) by 

issuing a Notice of Decision one day after the hearing and then its First Decision 

with findings of fact and conclusions of law 69 days later. The ZHB’s untimely 

issuance of its First Decision prejudiced Landowner, she contends, because she filed 

an appeal from the Notice of Decision. Indeed, Landowner highlights, Solicitor 

incorrectly indicated in the Notice of Decision that Landowner had to appeal from 

it. “The intent” of Solicitor’s statement, Landowner claims, “was to prejudice [her] 

and force an untimely and inappropriate appeal.” (Id. at 30.) Landowner asserts that 

she was not given the opportunity to supplement her appeal following the ZHB’s 

First Decision, and the ZHB’s First Decision was “not part of the record or should 

not have been considered as part of the record” before common pleas. (Id.) Because 

the ZHB’s First Decision was untimely, Landowner argues that common pleas 

should have deemed her application for a variance by estoppel approved or made its 

own findings of fact.

The Township argues that the ZHB’s Notice of Decision, issued one day after 

the last hearing, prior to remand, on May 18, 2016, was sufficient to meet its 

obligation under Section 908(9) of the MPC. Where, as here, Township contends, a 

notice of decision is timely issued, the municipality need not issue a decision with 

findings of facts, conclusions of law, and reasons within 45 days of the last hearing. 

 

3 The final hearing was on May 18, 2016, and the ZHB’s First Decision was mailed on July 

26, 2016, which is a period of 69 days.
19

Further, contrary to Landowner’s argument, the Township asserts that the ZHB’s 

First Decision was in front of common pleas. Indeed, Landowner attached the 

ZHB’s First Decision to the brief she submitted to common pleas. Consequently, 

the Township claims that Landowner did not suffer any prejudice when the ZHB 

issued its First Decision more than 45 days after the last hearing.

2. Discussion

Section 908(9) of the MPC provides, in relevant part, that “[t]he board or the 

hearing officer, as the case may be, shall render a written decision or, when no 

decision is called for, make written findings on the application within 45 days after 

the last hearing before the board or hearing officer.” 53 P.S. § 10908(9).

We addressed the 45-day requirement in Section 908(9) in Bishop Nursing 

Home, Inc. v. Zoning Hearing Board of Middletown Township, 638 A.2d 383, 385

(Pa. Cmwlth. 1994), where the ZHB denied the property owner’s application for a 

variance, notifying the property owner on May 23, 1990, of its denial. The property 

owner filed its appeal to the trial court on June 22, 1990. On July 2, 1990, the 

property owner received the ZHB’s final decision, which contained its findings of 

fact and conclusions of law. On appeal to this Court, the property owner argued, 

based on Section 908(9) of the MPC, that the trial court should have struck the 

ZHB’s findings of fact because they did not accompany the ZHB’s notice of decision 

and were filed after the property owner appealed to the trial court. We rejected the 

property owner’s argument. While we reiterated that we did “not condone the late 

filing of findings of fact,” we did not remand for new findings because the ZHB’s 

“findings were clearly part of the record before the trial court and it would have been 

absurd for the court to remand the matter to the [ZHB] for findings of fact and 
20

conclusions of law.” Id. at 386. Further, we noted, the property owner “was not 

prejudiced by any ‘late filing’ of the [ZHB’s] decision as [the property owner] had 

already appealed to the trial court and was permitted to supplement its land use 

appeal in order to specifically challenge the [ZHB’s] findings before the trial court.” 

Id.

We again addressed a ZHB’s issuance of a decision with findings of fact, 

conclusions of law, and reasons beyond the 45-day deadline contained in Section 

908(9) in Mullen v. Zoning Hearing Board of Collingdale Borough, 691 A.2d 998 

(Pa. Cmwlth. 1997). There, following testimony before the ZHB on a variance 

request heard on July 19, 1995, the Board voted, during a public work session on 

August 9, 1995, to deny the variance request. By letter dated August 11, 1995, the 

ZHB’s solicitor informed the property owner’s attorney that the variance request had 

been denied, that a written order containing findings of fact would follow, and that 

the time period for the property owner to appeal would commence from the date the 

August 11, 1995 letter was mailed. Id. at 999. The property owner filed an appeal 

with the trial court on September 8, 1995, and, on October 6, 1995, the ZHB filed 

its written decision containing findings of fact. Id. The trial court reversed the 

ZHB’s decision, concluding that a deemed approval had resulted because the ZHB 

did not issue a formal decision until more than 45 days after the July 19, 1995 

hearing. On appeal to this Court, we reversed the trial court. After reviewing our 

case law, we concluded that Section 908(9) of the MPC required the ZHB, “[w]ithin 

forty-five days of the last hearing . . . [to] make a decision on the matter and that 

decision must be communicated to the applicant in writing.” Id. at 1001. However, 

we held, it was “not necessary that the decision be accompanied by the usual written 

appurtenances of an opinion.” Id. Thus, in Mullen, we concluded that the letter the 
21

ZHB’s solicitor issued, which was within 45 days of the last hearing, was sufficient 

to satisfy the requirements of Section 908(9) of the MPC and, therefore, “there was 

no deemed approval by the” ZHB. Id. at 1001; see Romesburg v. Fayette Cty. Zoning 

Hearing Bd., 727 A.2d 150, 152 (Pa. Cmwlth. 1999) (“precedent clearly indicates 

that a decision, not supported by written facts and findings, is still valid; the decision 

is not deemed to be in favor of the applicant solely because the findings of fact and 

conclusions of law are late or absent”).

Applying here our longstanding precedent of Bishop and Mullen, we must 

conclude that there was no deemed approval of Landowner’s request for a variance 

by estoppel. Much as in Mullen, the ZHB, through Solicitor, issued a timely decision 

denying Landowner’s request for a variance by estoppel. The Notice of Decision 

was issued one day after the final hearing. This was sufficient to satisfy the time 

requirements of Section 908(9) of the MPC. Moreover, contrary to Landowner’s 

contention, she was not prejudiced by the issuance of the ZHB’s First Decision 69 

days after the last hearing. As the Township notes, the ZHB’s First Decision was 

appended to the brief Landowner submitted to common pleas. In addition, 

ultimately, the result of Landowner’s appeal of the Notice of Decision was to remand 

the matter to the ZHB so that it could take additional evidence on Landowner’s 

request for a variance by estoppel. Therefore, as in Mullen, “[S]olicitor’s letter was 

sufficient to memorialize the decision made by the [ZHB], satisfy the timeliness 

requirements[,] and notify the [Landowner] so that [s]he could take an appeal.” 

Mullen, 691 A.2d at 1001. Accordingly, there was no deemed approval of 

Landowner’s request for a variance by estoppel.
22

III. Conclusion

For the foregoing reasons, we conclude that common pleas properly affirmed 

the ZHB’s Notice of Decision denying Landowner’s request for a variance by 

estoppel because Landowner failed to establish her entitlement to such relief, and 

the ZHB did not issue an untimely decision in violation of Section 908(9) of the 

MPC. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Penelope Helenski, :

Appellant :

 :

 :

v. : No. 973 C.D. 2018

 : 

Upper Merion Township :

Zoning Hearing Board :

:

O R D E R

NOW, May 2, 2019, the June 7, 2018 Order of the Court of Common Pleas 

of Montgomery County is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge