Behind ZHB Closed Doors

 

5 Surprising Truths About How PA Zoning Hearing Boards Really Operate

If you have ever attended a local hearing to protest a high-density development or request a simple fence variance, you know the atmosphere is often thick with tension. These are the front lines of local governance, where the stakes are personal and the rhetoric is often charged. In Pennsylvania, these sessions are governed by the Zoning Hearing Board (ZHB), a "quasi-judicial body" that functions less like a town council and more like a court of law—taking evidence, hearing testimony under oath, and rendering binding legal decisions.

While citizens often expect total, unvarnished transparency from any government entity, the PA Sunshine Act and established case law provide ZHBs with a unique set of rules. These rules allow—and sometimes even mandate—privacy in ways that might shock the average resident. As a civic journalist, I’ve seen how these "hidden" rules can frustrate the public, but understanding them is your first step toward real accountability.

1. The "Emotional Rancor" Shield: Why Private Deliberation is Legal

It may seem counter-intuitive in a state that prides itself on "Sunshine," but Pennsylvania ZHBs are legally permitted to weigh evidence and reach a consensus in private. This is known as the "quasi-judicial deliberation" exception.

This practice was solidified by the landmark Pennsylvania Supreme Court decision, Kennedy v. Upper Milford Township Zoning Hearing Board (2001). The court recognized that because a ZHB acts as a judge, it needs the same freedom a jury or a panel of judges has: the ability to debate the merits of a case without being swayed by a "mob" or public pressure.

Regarding the necessity of these private sessions, the Court was remarkably blunt:

"Closing these specific debates protects the board from the 'emotional rancor' often present in contentious local zoning disputes."

By allowing boards to retreat into an executive session, the law ensures that members can focus on legal integrity rather than the immediate emotional reactions of the crowd.

2. The Tale of Two Records: Minutes vs. Transcripts

Transparency in a ZHB meeting is managed through a dual-layer record-keeping system. There is a critical legal distinction between the "minutes" required by the Sunshine Act for the meeting portion and the "records" required by the PA Municipalities Planning Code (MPC) for the hearing portion.

The Sunshine Act Minutes

Under Section 706, the board must keep written minutes of the public meeting. These are not verbatim transcripts but must include:

• The date, time, and place of the meeting.
• The names of the board members present.
• The substance of all official actions taken (motions to approve/deny).
• A record of each individual member’s vote.
• The names of citizens who appeared and a summary of their testimony.

Civic Pro-Tip: While many municipalities post these online, the law only considers online posting a "best practice," not a mandate. To see the official record, you may still need to visit the municipal building in person or file a Right-to-Know request.

NOTE: Several local township ZHBs – e.g., Doylestown and Lower Makefield – publish minutes and decisions on their websites. Lower Makefield even provides videos of ZHB meetings on Youtube. Newtown Town, however, does not publish any ZHB minutes or summary of ZHB decisions. At least I cannot find any Newtown Township ZHB minutes on the township’s website nor do I see any “approval of minutes” item on any ZHB agenda. Consequently, the Netown ZHB appears to not be following PA Sunshine Act rules regarding public meeting minutes. The only option the public has is to do a Right-to-Know request for the “full stenographic record” (verbatim transcript)...see below. That is, IF such a record is kept!

The MPC Stenographic Record

While the minutes are a summary, the MPC demands a "full stenographic record" (a verbatim transcript) of the actual hearing. This ensures that every word of evidence and testimony is preserved for potential appeals, providing a layer of accountability that standard meeting minutes cannot offer.

3. The "No Paper Trail" Rule for Executive Sessions

While public meetings supposedly require detailed minutes, executive sessions are a black box by design. In fact, most municipal solicitors explicitly discourage ZHBs from keeping any written minutes of their private deliberations.

The reasoning is purely legal: keeping minutes of a private session could inadvertently create a paper trail that jeopardizes protected legal strategy or confidential consensus-building.

However, the board cannot simply disappear. To ensure a "public link," the Sunshine Act requires that:

• The board must announce the executive session and state a specific, non-confidential reason (e.g., "The Board will recess to deliberate on the Smith variance").
• The Timing Rule: This announcement must happen at an open meeting immediately before or immediately following the session.
• The fact of the session, including its start and end times, must be logged in the public minutes.

4. The Hard Line: All Votes Must Be Public

Despite the privacy allowed during deliberations, there is one area where transparency is absolute: the "Official Action." Under Section 708(c) of the Sunshine Act, no final decision can be made behind closed doors.

While a board can debate and reach a consensus in private, the actual vote to grant or deny an application must occur in an open, public meeting where citizens can witness the roll call. Furthermore, the MPC requires the board to issue its final, binding decision in writing within 45 days of the last hearing. This is the ultimate safeguard—while the "why" might be hashed out in private, the "what" remains a matter of public record.

5. The Forbidden Guest: No "Back-Room Deals"

To maintain a level playing field, the executive session is strictly exclusive. Only the ZHB members and their legal counsel (the solicitor) are permitted to be in the room.

The board is strictly prohibited from inviting applicants, developers, or objectors into these private sessions to provide extra "context" or testimony. This is known as the prohibition against ex parte communication. Under MPC Section 908(7), inviting one party into a private session is a direct violation of the rules. This safeguard is what prevents "back-room deals" and ensures that every piece of evidence used to make a decision is presented in the light of day where all parties can hear and contest it.

Conclusion: The Balance of Power

The rules governing Pennsylvania Zoning Hearing Boards highlight a delicate tension in our local democracy. We demand the right to know how our communities are shaped, yet the law grants boards a private space to weigh complex evidence without the interference of "emotional rancor."

This structure invites a fundamental question for any engaged resident: In a healthy democracy, is private deliberation a necessary tool for fair, legal judgment, or is it an obstacle to true accountability? Regardless of the answer, knowing these rules ensures that you—the citizen—can hold your local board to the high standard the law requires.

Posted on 04 Jul 2026, 01:25 - Category: Open Records/Transparency