Unauthorized Practice of Law Committee

Pennsylvania Bar Association Unauthorized Practice of Law (UPL) Committee

FORMAL OPINION 99-101

APPROVED AT SEPTEMBER 8, 1999 UPL COMMITTEE MEETING

HARRISBURG, PA



UNAUTHORIZED PRACTICE OF LAW BEFORE ZONING HEARING BOARDS AND GOVERNING BODIES OF MUNICIPALITIES IN CONNECTION

WITH LAND USE APPLICATIONS.



I. OPINION:

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.

ISSUES PRESENTED

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.



BACKGROUND

I. REGULATION OF THE PRACTICE OF LAW IN THE COMMONWEALTH OF PENNSYLVANIA



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 535 (1986).

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 v. Farrell

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 application.(1)

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 section 910.2.

(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 development] applications.



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).



ARGUMENT

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 LAW.



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 body.

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.

2. 2

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.



 


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