S. Bethlehem Assoc. v. ZHB of Bethlehem Twp ( 2023 )

[J-81-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
SOUTH BETHLEHEM ASSOCIATES, LP : No. 41 MAP 2022
:
: Appeal from the Order of the
v. : Commonwealth Court dated January
: 29, 2021 at No. 321 CD 2020
: Affirming the Order of the Court of
ZONING HEARING BOARD OF : Common Pleas of Northampton
BETHLEHEM TOWNSHIP, : County dated February 14, 2020 at
PENNSYLVANIA : No. C48-CV-2019-6785
:
: ARGUED: November 30, 2022
v. :
:
:
CENTRAL PA EQUITIES 30, LLC :
:
:
APPEAL OF: SOUTH BETHLEHEM :
ASSOCIATES, LP :
OPINION
JUSTICE MUNDY DECIDED: May 16, 2023
In this discretionary appeal, a local zoning board granted a request for variances
needed by a property owner to build a hotel on the subject property. The owner of a
competing hotel, who opposed the grant of such relief, was permitted to appear before
the board, cross examine witnesses, and provide oral argument. The question presented
is whether that party had standing to seek judicial review of the board’s subsequent ruling.
Appellee Central PA Equities 30, LLC (“Central”) owns the subject property, an
approximately 3.5-acre parcel in Bethlehem Township, Northampton County, located in
a Light Industrial/Office Campus (Phased) Zoning District, which permits a hotel use as
of right. Central wants to construct a four-story, 107-room hotel on the property. The
hotel would be about two blocks away from an existing hotel owned by Appellant South
Bethlehem Associates, LP.
The subject property is bordered on the north and east by public rights of way. It
is bordered on the west by a residential neighborhood known as Madison Farms. Under
the local zoning code, construction on the property is subject to certain constraints: there
must be fifty-foot setbacks from the rights of way and a 150-foot setback from the lot lines
of any dwelling. Also, earth berms are required on the Madison Farms side as a buffer
between the hotel and the residences.
If Central were to comply fully with the setback requirements, the buildable portion
of the property would be a small triangular area comprising eleven percent of the subject
property, which would be too small to build a viable hotel. Also, constructing earth berms
on the Madison Farms side would be impractical because a utility easement for power
lines on that side precludes grading changes. In view of these limitations, Central applied
to the Zoning Hearing Board of Bethlehem Township, requesting a dimensional variance
which would allow it to utilize a 74-foot setback from the residences (thus, a 76-foot
variance), as well as a waiver of the earth-berm mandate.
The Board held a hearing on these requests, at which Central presented the
testimony of a professional engineer and a hotel manager. Central also submitted a
number of exhibits in support of its application for relief. Appellant’s counsel, Timothy
Stevens, Esq., appeared at the hearing and signed in on the appropriate form as an
objector. Central objected to his participation because Appellant’s hotel was 1,000 feet
away, and hence, it was not within a 400-foot radius of the subject property so as to have
been entitled under the zoning code to notice of the hearing. Central posited, moreover,
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that Appellant was only appearing as a business competitor to oppose the construction
of a nearby hotel. Thus, Central argued Appellant lacked standing to oppose the
requested variances. Attorney Stevens countered that Appellant had a “definite interest
in the construction of a hotel that is just two blocks away” from its existing hotel. N.T.,
5/29/19, at 14.
The Board overruled Central’s objection. The Board’s solicitor explained that,
under the Municipalities Planning Code (MPC), when Attorney Stevens “entered his
appearance on the objector sheet,” he became “a party of record.” Id. at 34-35. In this
regard, the solicitor noted that per the MPC, even if the objector’s property was “on the
other side of the township,” he could still be a party of record. Id. at 35. See generally
53 P.S. § 10908(3) (relating to party status at zoning board hearings). Attorney Stevens
did not call any witnesses but he did cross-examine Central’s witnesses and provide oral
argument in opposition to the variances at the close of the hearing.
The Board ultimately issued a unanimous written decision granting the requested
variances. 1
Appellant appealed to the county court, and Central intervened, defending the
Board’s substantive decision and arguing Appellant lacked standing. The court ruled
against Central on the question of standing, concluding that Appellant had standing to
1 In its findings of fact, the Board stated, among other things, that: the proposed hotel
would have less of an impact on the surrounding area than a warehouse and office
building that had previously been approved for the property (but not built); the relief was
necessary to enable the reasonable use of the property; due to the unique shape and
topography of the parcel, Central demonstrated an unnecessary hardship that it did not
create; an earth berm was unnecessary because the adjacent residential properties
would be protected from traffic noise through the natural slope of the real estate,
appropriate buffering vegetation including a hedge row, and the preservation of existing
mature trees; the dimensional variance, if authorized, would be the minimum variance
that could afford relief; and construction of the hotel would not substantially impair the
appropriate use or development of adjacent property.
[J-81-2022] - 3
appeal as it had timely appeared before the Board as an objector and was presumed to
be affected by the variance requests as it owned a nearby property. 2 The court did,
however, affirm the Board’s decision on the merits.
Appellant appealed to the Commonwealth Court. In an unpublished decision, the
court affirmed the county court’s order on the grounds Appellant lacked standing. 3 It
reasoned zoning appeals may not be utilized solely as a method to deter free competition,
and it relied for this position on In re Farmland Industries, 531 A.2d 79 (Pa. Cmwlth. 1987),
which in turn referenced a now-replaced provision of the MPC that allowed appeals to
court by “aggrieved” persons. See 53 P.S. § 11007 (repealed). The court concluded that
Appellant failed to show aggrievement at the hearing because the asserted impact upon
its interest stemmed not from the variances themselves but from the competition that
would arise from the proposed new hotel. As such, the court did not reach Appellant’s
substantive arguments challenging the Board’s decision to grant the variances.
We granted allocatur limited to whether the Commonwealth Court erred in holding
that Appellant lacked standing to seek judicial review. See S. Bethlehem Assocs. v. ZHB
of Bethlehem Twp., 275 A.3d 484 (Pa. 2022) (per curiam).
Ordinarily, standing to initiate judicial proceedings depends on the litigant being
adversely affected in some way. See Wm. Penn Parking Garage v. City of Pittsburgh,
346 A.2d 269, 280 (Pa. 1975). To assess whether a litigant is affected in a manner the
law recognizes, courts “consider whether the litigant has a substantial, direct, and
2See S. Bethlehem Assocs. v. ZHB of Bethlehem Twp., No. C48-CV-2019-6785, slip op.
at 7 (C.P. Northampton Feb. 14, 2020) (citing Grant v. ZHB of Penn Twp., 776 A.2d 356,
358-59 (Pa. Cmwlth. 2001); Johnson v. ZHB of Richland Twp., 503 A.2d 1117, 1119 n.1
(Pa. Cmwlth. 1986); Baker v. ZHB of W. Goshen, 367 A.2d 819, 822-23 (Pa. Cmwlth.
1986)).
3See S. Bethlehem Assocs. v. ZHB of Bethlehem Twp., No. 321 C.D. 2020, 247 A.3d
1198, 2021 WL 303046 (Pa. Cmwlth. Jan. 29, 2021) (Table).
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immediate interest in the matter.” Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016). This
occurs when “the party’s interest surpasses that of the general public in procuring
obedience to the law, the harm alleged was caused by the matter complained of, and the
harm is not remote and speculative.” Trust Under Ashton’s Will, 260 A.2d 81, 88 (Pa.
2021).
The same is not necessarily true of local administrative proceedings. Section
908(3) of the MPC indicates standing to appear before a local zoning board considering
an application for a variance, and to present evidence and cross-examine witnesses in
relation to the application, is broader than aggrieved-person standing as outlined above.
That provision states:
The parties to the [zoning board] hearing shall be the municipality, any
person affected by the application who has made timely appearance of
record before the board, and any other person including civic or community
organizations permitted to appear by the board. The board shall have
power to require that all persons who wish to be considered parties enter
appearances in writing on forms provided by the board for that purpose.
53 P.S. § 10908(3). By its terms the provision accords objector status to certain persons
who have entered their appearances in writing on the appropriate form – which Appellant
did in the present case. The “any other person” language is quite broad, and while we
need not determine its limits (if any) at this juncture, the record reflects Appellant attained
objecting-party status before the Board pursuant to this provision. See N.T., 5/29/19, at
34-35. It is a separate question whether such party status automatically transfers intact
to the arena of judicial review. 4
4 The dissent references In re Larsen, 616 A.2d 529 (Pa. 1992), to support its assertion
that this Court has previously indicated standing to seek judicial review follows
automatically from a party’s “unsuccessful participation” before a zoning board.
Dissenting Op. at 17. In Larsen, this Court issued a per curiam order imposing a public
reprimand upon former Justice Larsen, and accepting a report written by the Judicial
Inquiry and Review Board. However, the portion of Larsen cited by the dissent does not
(continued…)
[J-81-2022] - 5
In terms of policy, it is possible that, in enacting Section 908(3), the General
Assembly wanted to avoid the need for mini-hearings on aggrievement before local
zoning boards. It is also possible the General Assembly wanted to allow for a broad range
of views for and against the relief sought without regard to aggrievement, so as to fully
inform the board on the merits of the proposed variance. Cf. 2 Pa.C.S. §554 (providing
local agencies are not bound by technical rules of evidence at their hearings). But even
if the Legislature’s intent was to avoid such delays and limitations before local zoning
boards, it does not follow that it sought to do away with the need for aggrievement as a
predicate to an appeal to a court of law, whose jurisprudential interests and procedures
are not identical to those of a local administrative body.
For its part, Appellant places heavy reliance on MPC Section 908(9), 53 P.S.
§ 10908(9). See, e.g., Brief for Appellant at 11. That is a lengthy subsection dealing in
part with land use applications deemed approved by operation of law due to the board’s
failure to take timely action. Its final sentence states: “Nothing in this subsection shall
prejudice the right of any party opposing the application to appeal the decision to a court
of competent jurisdiction.” 53 P.S. § 10908(9). But this is not an affirmative grant of
appellate rights. It indicates nothing in subsection 908(9) should be interpreted to negate
such rights, but it does not purport to grant any such rights either.
Moreover, Section 908(9), as well as 908(3), appear in Article IX of the MPC,
whereas judicial review of zoning board decisions is governed by Article X-A. See 53
P.S. §11001-A (“The procedures set forth in this article shall constitute the exclusive
contain analysis by this Court, but by the Judicial Inquiry and Review Board. This Court
did not expressly adopt all of the report’s legal analysis as our own. As such, its status
as Pennsylvania Supreme Court precedent is not entirely clear. Cf. Commonwealth v.
Tilghman, 673 A.2d 898, 904 (Pa. 1996) (observing a per curiam affirmance by this Court
does not create Supreme Court precedent; this Court must expressly affirm on the basis
of the lower court’s opinion in order to do so).
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mode for securing review of any decision rendered pursuant to Article IX . . ..”). Article
X-A, however, is silent on the prerequisites for appealing to court. It includes provisions
specifying that such appeals are to be taken to the court of common pleas in the district
where the land is located, see 53 P.S. § 11002-A(a); that such appeals must be filed
within 30 days after the order is entered or the date upon which notice of a deemed
decision is given, see id.; that appeals based on an alleged procedural defect may only
be taken by a person who establishes that the zoning decision has resulted (or could
result) in a property use that directly affects the person’s substantive property rights, see
id. § 11002.1-A(c); and many other provisions governing various aspects of appeals to
court. The General Assembly also knew how to define the class of parties permitted to
appeal to court generally, but it chose not to do so. The most probable reason, in our
view, is that the Legislature intended for the courts of this Commonwealth to determine
for themselves who would possess standing to initiate judicial proceedings to review a
final decision rendered by a local zoning board. 5
5The Local Agency Law, see Act of Apr. 28, 1978, P.L. 202, No. 53, § 5 (as amended 2
Pa.C.S. §§ 551-554, 751-754), applies “to all local agencies,” 2 Pa.C.S. §551, which are
defined as any government agency other than a Commonwealth agency, see id. §101.
This description encompasses municipal zoning boards. As such, it has previously been
applied to appeals from zoning board rulings. See, e.g., Money v. Bd. of Supervisors of
Westtown Twp., 89 A.3d 308, 312 (Pa. Cmwlth. 2014); Nernberg v. City of Pittsburgh,
620 A.2d 692, 694 (Pa. Cmwlth. 1993); see also Metal Green, Inc. v. City of Phila., 266
A.3d 495, 515 (Pa. 2021) (plurality) (indicating that the Local Agency Law “governs review
of adjudications by zoning hearing boards”).
We do not decide at present whether it controls as to the case sub judice, as neither
Central nor the Board mention it as a basis to find a lack of standing. We note in passing,
however, that its appeal-to-court provision contains an aggrievement prerequisite, see 2
Pa.C.S. § 752 (“Any person aggrieved by an adjudication of a local agency who has a
direct interest in such adjudication shall have the right to appeal therefrom to the court
vested with jurisdiction of such appeals . . ..”), which is similar to the traditional standing
test that we ultimately conclude pertains here. See, e.g., Scott v. City of Phila. ZBA, 126
(continued…)
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Standing exists as a jurisprudential doctrine to protect the courts and the public
from improper plaintiffs. See Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467,
481 (Pa. 2021). An improper plaintiff is one who has no legally enforceable interest
affected by the matter complained of. See Application of Beister, 409 A.2d 848, 850 n.2
(Pa. 1979). The “legally enforceable” qualifier is important because an interest may be
harmed, but it may not be the type of interest the law protects. See generally Nernberg
v. City of Pittsburgh, 620 A.2d 692, 695 (Pa. Cmwlth. 1993) (explaining that, to establish
standing to seek judicial review as an “aggrieved person” under the Local Agency Law, a
litigant must demonstrate that the interest harmed “is one which the law is intended to
protect”) (citing Wm. Penn, 346 A.2d at 284).
Thus, in In re Hickson, 821 A.2d 1238 (Pa. 2003), the plaintiff filed a private criminal
complaint in an effort to initiate a prosecution which he believed would have given him an
advantage in an upcoming election and in a prospective civil suit. These interests of the
litigant would have been advanced by a prosecutorial decision to proceed against the
alleged offender based on the private complaint, and these interests were accordingly
harmed by the district attorney’s decision not to act. When the plaintiff sought judicial
review of the district attorney’s decision, we did not consider such harm sufficient to give
him standing. See id. at 1245. Similarly, the federal courts have held that harm to
ideological interests alone is insufficient to confer Article III standing. See, e.g.,
Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107, 112 (D.C.
Cir. 1990) (citing Sierra Club v. Morton, 405 U.S. 727, 739 (1972)); accord O’REILLY,
ADMINISTRATIVE RULEMAKING § 15:50 (2022 ed.).
A.3d 938, 940 (Pa. 2015); Pittsburgh Trust for Cultural Res. v. Pittsburgh ZBA, 604 A.2d
298, 301-02 (Pa. Cmwlth. 1992).
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Being free from market competition is similar: it is in the interest of the established
hotel, Appellant herein, to maintain market share and pricing without a new hotel cropping
up two blocks away, but that is not the type of interest the law recognizes as enforceable
in court. The reason is based in public policy, which protects market competition but not
market competitors – at least not from competition. Hence, such an interest cannot be
the basis for a claim to aggrievement for purposes of standing to commence a lawsuit.
Extending Section 908(3) of the MPC, which relates to standing to appear before a zoning
board considering a land use application, to the arena of judicial review would be contrary
to such policy. In this respect, the Commonwealth Court appropriately referred to a
passage from its Farmland Industries decision which states:
It is clear . . . that Farmland is using this process to impede the location of
a competitor in its trading area. We cannot allow zoning appeals to be used
as a method to deter free competition.
Id. at 84. Even though the statutory provision applicable in Farmland Industries has been
repealed, it remains a valid policy objective to prevent the zoning appeals process from
being misused for the sole purpose of hindering market competition, and that objective
informs our interpretation of the MPC. See 1 Pa.C.S. § 1922(5) (providing the General
Assembly favors the public interest over any private interest). 6
Here, it is undisputed that Appellant’s sole motive for opposing the variance is that
its financial interests would be affected by having to compete for business with Appellee’s
6 We do not overlook Appellant’s argument that Section 11007 was “replaced” by Section
10908, which in turn “broadened the standing of a party” to appeal to court. Brief at 11.
We just disagree. As developed above, Section 10908 does not appear in Article X-A
and it relates only to standing to appear before a local zoning board. And the General
Assembly is presumed to have been aware of our longstanding test for standing to seek
judicial review when it made that legislative change. Because the requirement of standing
serves important policy objectives as summarized above, if the General Assembly intends
to override that requirement it will have to say so more explicitly; Article X-A’s silence on
the issue is an insufficient basis to conclude that that was the Legislature’s intent.
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proposed hotel. Appellant was allowed to make its case to the zoning board consistent
with the MPC’s liberal allowance of party status before that administrative body. But it
does not follow that the MPC or this Court’s standing jurisprudence must recognize a right
in favor of Appellant to continue its opposition through an appeal to court. Such would
allow Pennsylvania’s judicial machinery to be used in service of a business’s effort to be
free from competition to the detriment of the traveling public.
In sum, then, we hold that a party who appears before a zoning board may only
appeal an adverse decision to court if that party has standing per this Court’s traditional
understanding of the concept. Such is consistent with our decision in Hickson, where
Rule of Criminal Procedure 506 (then-Rule 106) was silent with regard to a citizen’s
standing to seek judicial review of prosecutorial inaction on a private criminal complaint.
We held that such silence did not negate the ordinary requirement of standing to institute
judicial proceedings. See Hickson, 821 A.2d at 1243. Further, we find in this matter that
Appellant lacked standing to appeal, as its only interest affected by the zoning board’s
ruling was its desire to suppress competition in the open market.
The order of the Commonwealth Court is affirmed.
Chief Justice Todd and Justice Dougherty join the opinion.
Justice Donohue files a dissenting opinion in which Justice Wecht joins.
Justice Brobson did not participate in the consideration or decision of this matter.
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