Pennsylvania Bar Association Unauthorized Practice of Law (UPL) Committee
FORMAL OPINION 99-101
APPROVED AT SEPTEMBER 8, 1999 UPL COMMITTEE MEETING
UNAUTHORIZED PRACTICE OF LAW BEFORE ZONING HEARING BOARDS AND
GOVERNING BODIES OF MUNICIPALITIES IN CONNECTION
WITH LAND USE APPLICATIONS.
It is the OPINION of the Unauthorized Practice of Law Committee of the Pennsylvania Bar
Association (the "Committee") that the representation of property owners/applicants before zoning
hearing boards and governing bodies by persons including, but not limited to (i.e. by way of
illustration, not limitation) land use and urban planners, architects, real estate salespersons and
brokers, real estate appraisers, civil engineers, contractors, and surveyors not licensed to practice law
in the Commonwealth of Pennsylvania ("Unlicensed Persons") in connection with land use
applications is the unauthorized and unlicensed Practice of Law.
BRIEF IN SUPPORT OF OPINION 99-101 OF THE PENNSYLVANIA BAR
ASSOCIATION UNAUTHORIZED PRACTICE OF LAW COMMITTEE
CONCERNING THE UNAUTHORIZED PRACTICE OF LAW BEFORE ZONING
HEARING BOARDS AND GOVERNING BODIES OF MUNICIPALITIES IN
CONNECTION WITH LAND USE APPLICATIONS
It has come to the attention of the Committee that persons not licensed to practice law,
including by way of illustration and not limitation, land use and urban planners, architects, real estate
salespersons and brokers, real estate appraisers, civil engineers, contractors, and surveyors represent
or attempt to represent property owners/applicants in proceedings before the various zoning hearing
boards and governing bodies of municipalities regarding land use, including zoning variance and
special exceptions, conditional uses, land development and subdivision.
DOES THE REPRESENTATION OF A PROPERTY OWNER/APPLICANT
BEFORE A ZONING HEARING BOARD OR THE GOVERNING BODY OF A
MUNICIPALITY, IN CONNECTION WITH LAND USE APPLICATIONS BY A
PERSON NOT LICENSED TO PRACTICE LAW IN THE COMMONWEALTH OF
PENNSYLVANIA, CONSTITUTE THE UNAUTHORIZED PRACTICE OF LAW?
Suggested Answer: Yes.
I. REGULATION OF THE PRACTICE OF LAW IN THE COMMONWEALTH
The Pennsylvania Constitution provides that "[t]he Supreme Court shall have the power to
prescribe general rules governing practice, procedure and conduct of all courts . . . and for admission
to the bar and to practice law . . . ." Pa. Const. art. V, § 10(c). The Court has the exclusive right to
determine what constitutes the practice of law. Kohlman v. Western Pennsylvania Hospital, 438
Pa.Super. 352, 652 A.2d 849 (1994), appeal denied, 541 Pa. 640, 663 A.2d 692 (1995);
Commonwealth v. Carroll, 358 Pa.Super. 357, 517 A.2d 980, appeal denied, 515 Pa. 573, 527 A.2d
Persons engaging in the unauthorized practice of law are subject to the penalties set forth
in 42 Pa.C.S.A. § 2524:
(a) General rule. Except as provided in subsection (b), any person, including, but
not limited to, a paralegal or legal assistant, who within this Commonwealth shall
practice law, or who shall hold himself out to the public as being entitled to practice
law, or use or advertise the title of lawyer, attorney at law, attorney and counselor at
law, counselor, or the equivalent in any language, in such a manner as to convey the
impression that he is a practitioner of the law of any jurisdiction, without being an
attorney at law or a corporation complying with 15 Pa.C.S. Ch. 29 (relating to
professional corporations), commits a misdemeanor of the third degree upon the first
violation. A second or subsequent violation of this subsection constitutes a
misdemeanor of the first degree.
. . .
(c) Injunction. In addition to criminal prosecution, unauthorized practice of law
may be enjoined in any county court of common pleas having personal jurisdiction
over the defendant. The party obtaining the injunction may be awarded costs and
expenses incurred, including reasonable attorney fees, against the enjoined party. A
violation of subsection (a) is also a violation of the act of December 17, 1968 (P.L.
1224, No. 387), known as the Unfair Trade Practices and Consumer Protection Law.
In order to protect the public, stringent requirements have been imposed to gain admission
to and remain a member of the bar. See Kohlman, 438 Pa.Super. at 356, 357, 652 A.2d at 851. "A
duly admitted attorney is an officer of the court and answerable to it for dereliction of dutyChilds
et al. v. Smeltzer, 315 Pa. 9, 14, 171 A. 883, 886 (1934). As stated by the Supreme Court in Shortz
the object of the legislation forbidding practice to laymen is not to secure to lawyers
a monopoly, however deserved, but, by preventing the intrusion of inexpert and
unlearned persons in the practice of law, to assure to the public adequate protection
in the pursuit of justice, than which society knows no loftier aim.
Shortz v. Farrell, 327 Pa. 81, 91, 193 A. 20, 24 (1937).
The Courts have not precisely delineated "the boundaries . . . which limit the practice of law"
since such "[a]n attempt to formulate a precise definition would be more likely to invite criticism
than achieve clarity." Shortz, 327 Pa. at 84, 193 A. at 21. Although such an exact description does
not exist, one can identify those areas which are reserved for licensed attorneys at law:
Where . . . a judgment requires the abstract understanding of legal principles and a
refined skill for their concrete application, the exercise of legal judgment is called
for. Shortz v. Farrell, 327 Pa. 81, 85, 193 A. 20, 21 (1973). While at times the line
between lay and legal judgments may be a fine one, it is nevertheless discernible.
Each given case must turn on a careful analysis of the particular judgment involved
and the expertise that must be brought to bear on its exercise.
Dauphin County Bar Association v. Mazzacaro, 465 Pa. 545, 553, 351 A.2d 229, 233 (1976).
II. JURISDICTION OF THE ZONING HEARING BOARD AND
MUNICIPALITY GOVERNING BODY
The Pennsylvania Municipalities Planning Code sets forth the exclusive means by
which an applicant may obtain relief. An applicant/property owner must appear before either the
zoning hearing board or the governing body of the municipality depending upon the nature of the
The zoning hearing board or governing body must conduct a public hearing within 60
days of the applicant's request. 53 P.S. § 10908(1.2). Pursuant to the Pennsylvania Municipalities
Planning Code, any "municipality which has enacted or enacts a zoning ordinance . . . shall create
a zoning hearing board."(2) 53 P.S. § 10901. The zoning hearing board has exclusive jurisdiction "to
hear and render final adjudications" in:
(1) Substantive challenges to the validity of any land use ordinance, except those
brought before the governing body pursuant to sections 609.1 [relating to
landowner curative amendments] and 916.1(a)(2) [relating to substantive
challenges brought before the governing body].
(2) Challenges to the validity of a land use ordinance raising procedural
questions or alleged defects in the process of enactment or adoption which
challenges shall be raised by an appeal taken within 30 days after the
effective date of said ordinance. . . .
(3) Appeals from the determination of the zoning officer, including, but not
limited to, the granting or denial of any permit, failure to act on the
application therefor, the issuance of any cease and desist order or the
registration or refusal to register any nonconforming use, structure or lot.
(4) Appeals from the determination by a municipal engineer or the zoning officer
with reference to the administration of any flood plain or flood hazard
ordinance or such provisions with a land use ordinance.
(5) Applications for variances from the terms of the zoning ordinance and flood
hazard ordinance or such provisions within a land use ordinance pursuant to
(6) Applications for special exception under the zoning ordinance or flood plain
or flood hazard ordinance or such provisions within a land use ordinance,
pursuant to section 912.1.
(7) Appeals from the determination of any officer or agency charged with the
administration of any transfers of development rights or performance density
provisions of the zoning ordinance.
(8) Appeals from the zoning officer's determination under section 916.2 [relating
to preliminary opinions of zoning officers].
(9) Appeals from the determination of the zoning officer or municipal engineer
in the administration of any land use ordinance or provision thereof with
reference to sedimentation and erosion control and storm water management
insofar as the same relate to development not involving Article V [relating
to subdivision and land development] or VII [relating to planned residential
53 P.S. § 10909.1(a).
The governing body of a municipality "shall have exclusive jurisdiction to hear and render
final adjudications" in:
(1) All applications for approvals of planned residential developments under
Article VII pursuant to the provisions of section 702.
(2) All applications pursuant to section 508 for approval of subdivisions or land
development under Article V. . . .
(3) Applications for conditional use under the express provisions of the zoning
ordinance pursuant to section 603(c)(2).
(4) Applications for curative amendment to a zoning ordinance pursuant to
sections 609.1 ans 916.1(a)(2). . . .
53 P.S. § 10909.1(b).
THE REPRESENTATION OF A PROPERTY OWNER/APPLICANT BEFORE A
ZONING HEARING BOARD OR THE GOVERNING BODY OF A MUNICIPALITY
IN CONNECTION WITH LAND USE PLANNING APPLICATIONS BY NON-ATTORNEYS, INCLUDING BUT NOT LIMITED TO LAND USE AND URBAN
PLANNERS, ARCHITECTS, REAL ESTATE SALESPERSONS AND BROKERS,
REAL ESTATE APPRAISERS, CIVIL ENGINEERS, CONTRACTORS,
SURVEYORS, OR ANY OTHER PERSON NOT LICENSED TO PRACTICE LAW
IN PENNSYLVANIA, CONSTITUTES THE UNAUTHORIZED PRACTICE OF
The Supreme Court's ability to regulate the practice of law is not restricted to courts of
record. "Where the application of legal knowledge and technique is required, the activity constitutes
such practice even if conducted before a so-called administrative board or commission. It is the
character of the act, and not the place where it is performed, which is the decisive factor."
Shortz, 327 Pa. at 85, 193 A. at 21 (emphasis added).
Shortz focused solely on the issue of whether proceedings before the Workman's
Compensation Board required the "application of legal knowledge and technique", and therefore
whether laymen can appear on another's behalf. 327 Pa. at 90, 193 A. at 24. According to the
Court, the Workman's Compensation Board "considers legal questions, applies legal rules, and
weighs facts in light of legal principles. It has the power to issue subpoenas, administer oaths, and
require the attendance of witnesses and the production of books and documents." 327 Pa. at 86, 193
A. at 22 (citations omitted). Furthermore, "the findings of fact made by the board are final . . .; the
court cannot reverse such findings if there is any competent evidence to support them." Id. (citations
omitted). Based upon such factors, our Supreme Court considered the proceedings before this
administrative agency to be "essentially of a judicial character" and therefore constituted the practice
of law.(3) Id.
The Supreme Court's reasoning in Shortz equally applies to the issue of whether the non-attorney representation of applicants before the zoning hearing board constitutes the unauthorized
practice of law. Proceedings before the board are under oath. 53 P.S. § 10908(4). The board may
subpoena witnesses and documents. Id. Although the rules of evidence do not apply, parties have
the right to be represented by legal counsel and "shall be afforded the opportunity to respond and
present evidence and argument and cross-examine adverse witnesses on all relevant issues." 53 P.S.
§ 10908(5)-(6). As recognized by the Shortz Court, "examination and cross-examination of
witnesses require a knowledge of relevancy and materiality." 327 Pa. at 86, 193 A. at 22. Such
concepts require one to recognize and apply many abstract principles of law. Therefore, since the
examination and cross-examination of witnesses before the zoning hearing board implicates legal
knowledge and technique, one must conclude that the representation of applicants is the practice of
law. Shortz, supra.
Representation of property owners/applicants before the zoning hearing board also requires
familiarity with ordinances, statutes, including the Municipalities Planning Code, and appellate court
decisions. In Blair, Jr. v. Service Bureau, Inc., the court determined that non-attorney tax consultants
who held themselves out to the public as capable of reducing or eliminating tax liability committed
the unauthorized practice of law because this service "required thorough familiarity with complicated
statutes and with multitudinous court decisions." Blair, Jr. v. Service Bureau, Inc., 87 Pgh. Legal
Journal 155, 165 (1939). The representation of property owners/applicants before the zoning hearing
board requires a similarly extensive knowledge. Based upon statutes and case law, the property
owner/applicant must sustain a legal burden that varies depending upon whether the applicant seeks
a conditional use(4), special exception(5) or variance(6).
Despite the argument that the zoning hearing board is largely a "fact-finder", legal
representation is vital in these proceedings, which are quite often adversarial in nature. The
municipality, persons affected by the application who timely enter their appearance and other civic
groups or interested persons may be parties to the proceedings. 53 P.S. § 10908(3). Persons
opposed to the application have the opportunity to "present evidence and argument and cross-examine adverse witnesses on all relevant issues." 53 P.S. § 10908(5). A non-lawyer is not
sufficiently trained to evaluate the legal sufficiency of the opposition's arguments.
Of ultimate importance, is the preservation of issues for appeal in the record of the zoning
hearing board proceedings. The Municipalities Planning Code requires the board to keep a
stenographic record of the proceedings. 53 P.S. § 10908(7). If dissatisfied with the decision of the
zoning hearing board, the applicant may appeal the decision to the court of common pleas of the
judicial district in which the property is located. 53 P.S. § 11002-A. The court, however,
traditionally does not take additional testimony. "If, upon motion, it is shown that proper
consideration of the land use appeal requires the presentation of additional evidence, a judge of the
court may hold a hearing to receive additional evidence . . . ." 53 P.S. § 11005-A. Therefore, the
record of the proceedings before the board is vital since the presentation of additional evidence
before the court is not a matter of right.
The stenographic record of the zoning hearing board hearing represents the only opportunity
in the vast majority of cases to develop an evidentiary record in support of an application. If the
court does not permit additional evidence, the standard of review of the board's decision is whether
the board committed an abuse of discretion or error of law and whether there is substantial evidence
to support the ruling in question. Valley View Civic Association v. Zoning Board of Adjustment,
501 Pa. 550, 462 A.2d 637 (1983). Thus, any judicial review focuses solely on the record created
before the board or governing body. If one does not preserve procedural, as well as substantive,
issues in the board's record, such matters are waived.
Clearly, non-attorney representation of applicants before the board or governing body
endangers the public. The multiplicity of statutes and appellate court opinions governing land use
applications require legal knowledge to effectively present the applicant's case. Applicants must
provide sufficient evidence to overcome significant legal burdens. Although not bound by the
technical rules of evidence, proceedings before the board and governing body present the only
opportunity to create an evidentiary record in support of the applicant's legal position, and this
should not be entrusted to a non-attorney. Only an attorney, licensed to practice law in
Pennsylvania, can properly represent an applicant before the zoning hearing board or governing
1. 1 1 It is recognized that, depending upon the nature of the application, the governing body or
planning agency, if so designated by the governing body pursuant to 53 P.S. § 10909.1(b), may have
exclusive jurisdiction to hear and render final adjudications. For purposes of this discussion, the
term "governing body" collectively refers to the governing body and the planning agency.
Two or more municipalities may create a joint zoning hearing board rather than establishing
separate agencies. 53 P.S. § 10904.
3. 3 "These proceedings, though less technical, are conducted much as in court. . . . Were they
transferred to a courtroom and carried on before a judge, it would be readily perceived that they
involve the same fundamental characteristics of the determination of property rights and obligations
of parties as do other judicial proceedings." Shortz, 327 Pa. at 86, 87, 193 A. at 22.
4. 4 Pursuant to 53 P.S. § 10913.2, the applicant may receive approval for a conditional use based
upon the standards set forth in the varying zoning ordinances:
Where the governing body, in the zoning ordinances, has stated conditional uses to
be granted or denied by the governing body pursuant to express standards and
criteria, the governing body shall hold hearings on and decide requests for such
conditional uses in accordance with such standards and criteria. In granting a
conditional use, the governing body may attach such reasonable conditions and
safeguards, in addition to those expressed in the ordinance, as it may deem necessary
to implement the purposes of this act in the zoning ordinance.
5. 5 In order to receive a special exception, "the applicant bears the burden of establishing that the
proposal complies with the specific requirements placed on the use by the ordinance, while the
objectors have the burden of proving that the proposal is detrimental to the public health, safety and
welfare." Appeal of Booz, 111 Pa. Commw. 330, 334 n.3, 533 A.2d 1096, 1098 n.3 (1987) (citing
Bray v. Zoning Board of Adjustment, 48 Pa. Commw. 523, 410 A.2d 909 (1980)) (emphasis added)).
6. 6 The Municipalities Planning Code, 53 P.S. § 10910.2(a), sets forth the following standard for
the grant of a variance:
The board may grant a variance provided the following findings are made where
relevant in a given case:
(1) That there are unique physical circumstances or conditions, including
irregularity, narrowness, or shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the particular property,
and that the unnecessary hardship, required by law, is due to such conditions,
and not the circumstances or conditions generally created by the provisions
of this Ordinance in the neighborhood or district in which property is located;
(2) That because of such physical circumstances or conditions, there is no
possibility that the property can be developed in strict conformity with the
provisions of this Ordinance and that the authorization of a variance is
therefore necessary to enable the reasonable use of the property;
(3) That such unnecessary hardship has not been created by the applicant;
(4) That the variance, if authorized, will not alter the essential character of the
neighborhood or district in which the property is located, nor substantially or
permanently impair the appropriate use or development of adjacent property,
nor be detrimental to the public welfare; and
(5) That the variance, if authorized, will represent the minimum variance that
will afford relief and will represent the least modification possible of the
regulation at issue.