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

[J-81-2022] [MO – Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
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 :
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: May 16, 2023
In this discretionary appeal, Appellee Central PA Equities 30, LLC (“Appellee”)
sought two variances from the Zoning Hearing Board of Bethlehem Township (the
“Board”). Appellant South Bethlehem Associates, LP (“Appellant”) appeared at the
hearing and opposed the variances sought by Appellee. After finding that Appellant had
standing, the Board granted the variances. Appellant appealed to the trial court, which
agreed that Appellant had standing but affirmed on the merits. However, on further
appeal, the Commonwealth Court found that Appellant lacked standing to appeal because
it was not an aggrieved party, and affirmed solely on those grounds. The Majority finds
that Appellant was a proper party before the Board pursuant to Section 908(3) of the
Pennsylvania Municipalities Planning Code (“MPC”) 1 and thus, had standing to challenge
Appellee’s requested variances before the Board. However, the Majority finds that in
order to appeal to the trial court (and thus, subsequently to the appellate courts), Appellant
was required to make a showing of aggrievement by the grant of the variances and that
Appellant failed to do so.
For the reasons that follow, I respectfully disagree with the Majority’s application
of the traditional aggrieved party standard to find that Appellant lacked standing to secure
judicial review. Consistent with longstanding precedent related to zoning appeals, I would
hold that a party sufficiently establishes that they are aggrieved for purposes of appeal to
the courts when they have been granted party status before the Board and the Board
reaches an adverse decision. Accordingly, I must also respectfully disagree with the
Majority’s decision to apply Section 908(3) of the MPC, as I believe the proper course
would have been to remand to the Commonwealth Court to conduct that inquiry, given its
failure to do so in the first instance. In short, I believe that the trial court conducted the
proper analysis into Appellant’s standing to first challenge the variances before the Board
and then seek judicial review of the Board’s adverse decision granting the challenged
variances. As such, I would vacate the order of the Commonwealth Court and remand to
that court for application of the proper standard.
I. Background
A detailed recitation of the facts and the parties’ arguments is helpful to
understanding the disposition that I would reach in this case. Appellant owns the
Courtyard Marriot hotel located at 2220 Emrick Boulevard in Bethlehem Township,
Northampton County. Appellee seeks to construct, at 2401 Emrick Boulevard, a 107-
room, four-story hotel on a 3.482-acre property located approximately 1000 feet away
1 Act of July 31, 1968, P.L. 805, as amended, §§ 101-1202, 53 P.S. §§ 10101-11202.
[J-81-2022] [MO: Mundy, J.] - 2
from Appellant’s hotel. The properties are located in the same industrial park in the “Light
Industrial/Office Campus (Phased) Zoning District,” where a hotel use is permitted as of
right. However, per the Bethlehem Township Zoning Code (“Zoning Code”), certain
requirements must be met for Appellee’s proposed development. The northern and
eastern sides of the property border Cook Drive and Emrick Boulevard; therefore, fifty-
foot setbacks from the street rights-of-way are required. In addition, the western side
borders the residential Madison Farms complex, which includes a thirty-nine-unit
apartment structure with fourteen vehicular garages. The proximity of these multiple
residential units within 175 feet of the proposed hotel triggered both a 150-foot setback
requirement and the mandate for construction of an earth berm within the setback.
In order to be relieved from these requirements, Appellee sought two variances
under the Zoning Code. The first was a dimensional variance from Section 275.91(M)(4)
of the Zoning Code, which, specifically, requires a 150-foot setback from the lot lines of
any dwelling, residential or agricultural district boundary, or municipal park. Appellee
proposed a seventy-four-foot setback, i.e., a variance of seventy-six feet. The second
variance request sought a complete waiver from Section 275.91(M)(5), which mandates
the construction of the earth berm within the setback area. Appellee sought a waiver from
this mandate because a utility easement for power lines along the western edge of the
property precludes grading changes, which will make the construction of a berm
impractical.
At a May 29, 2019 hearing before the Board, Appellee presented the testimony of
two witnesses, as well as nine exhibits. In addition, Timothy Stevens, Esquire, appeared
as counsel for the sole objector. When introducing himself, Attorney Stevens
misidentified his client as South Mountain Associates, LP, rather than South Bethlehem
Associates, LP. Nonetheless, the Board accepted Attorney Stevens’ representation that
[J-81-2022] [MO: Mundy, J.] - 3
his client owned the Courtyard Marriott at 2220 Emrick Boulevard, located approximately
two blocks away from the subject property and within the same industrial park. Id. at 12-
13. At its first opportunity at the hearing, Appellee challenged the objector’s standing
because they were “not within the requisite notice under the township zoning ordinance”2
and were “merely appearing as a competitor in opposition to another hotel being
proposed.” N.T., 5/29/2019, at 14. When the Board attempted to allow Attorney Stevens
to participate and defer a decision on standing, counsel for Appellee, Catherine Durso,
Esquire, reiterated her objection to standing, stating that “there is a difference between
being able to ask questions and being given party status and standing, especially when
you are more than 1000 feet away and you are a competitor.” Id. at 34. After some
discussion, the Board then overruled Appellee’s objection to standing and found that
Attorney Stevens’ client was “a party of record.” Id. at 34-35. As the Board explains in
its present brief, such rejection was based upon its application of Section 908(3) of the
MPC, which provides:
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).
Based on Section 908(3), the Board deemed Attorney Stevens’ client a “party” and
allowed him to participate. Attorney Stevens’ participation at the hearing was limited to
2 Section 275-12 of the Zoning Code requires that written notice of the hearing before
the Board shall be provided to lot owners within 400 feet of the lot lines of the subject
property. There is no dispute that Appellant’s property is approximately 1000 feet away
from the site of Appellee’s proposed hotel and that Appellant was, thus, not entitled to
automatic notice.
[J-81-2022] [MO: Mundy, J.] - 4
his cross-examination of Appellee’s witnesses and legal argument in opposition to the
variances. When the Board chair questioned Attorney Stevens as to whether he had any
evidence he wished to present, counsel responded, “I just have my legal argument and
my case law. My evidence would be my case law.” N.T., 5/29/2019, at 60. Attorney
Stevens also indicated that he wished to submit exhibits, but the Board rejected his
request to do so because he was not presenting a witness. Id. at 60-61. Ultimately,
although the Board was unpersuaded by Appellee’s challenge to Appellant’s standing,
the Board voted unanimously to grant the variances over Appellant’s substantive
objections.
Appellant appealed to the trial court, and Appellee maintained its challenge to
Appellant’s standing and additionally argued that Appellant lacked standing to appeal to
the trial court. The trial court found that Appellant had standing in both regards, and
without taking additional evidence, affirmed the decision to grant the variances. As to
standing, the court relied on caselaw from the Commonwealth Court for the proposition
that standing to appeal is established by an Appellant’s participation at the zoning hearing
board proceedings as a party/objector. Trial Court Opinion, 2/14/2020, at 7-8 (citing Grant
v. Zoning Hearing Bd. of the Twp. of Penn, 776 A.2d 356, 358-59 (Pa. Commw. 2001)
(“[I]ndividuals who have party status before the board may seek an appeal to the trial
court as a party aggrieved.”); Johnson v. Zoning Hearing Bd. of Richland Twp., 503 A.2d
1117, 1119 n.1 (Pa. Commw. 1986) (noting that appellants were “members of an
organization known as the Richland Concerned Citizens, and appeared as objectors at
the hearing before the Board”)). Thus, the trial court considered whether Appellant was
properly found to be a “party” before the Board based on Section 908(3) the MPC as “any
person affected by the application who has made timely appearance of record before the
board.” Id. at 8 (quoting 53 P.S. § 10908(3)). Applying this standard, the trial court found
[J-81-2022] [MO: Mundy, J.] - 5
that Appellant was a party to the Board proceedings, and consequently possessed
standing to appeal, because Appellant: (1) appeared at the May 29, 2019 hearing via
counsel; and (2) was “affected by the application” due to its “close proximity” just “two
blocks” from Appellee’s property. Id. (quoting Laughman v. Zoning Hearing Bd. of
Newberg Twp., 964 A.2d 19, 22 (Pa. Commw. 2009) (stating that when a “property is
located in close proximity to the subject property … , the zoning decision is presumed to
have an effect on the property owner’s property”)). Notwithstanding this finding that
Appellant was a party before the Board and thus had standing to appeal, the trial court
affirmed the Board’s decision to grant the variances, over Appellant’s substantive
objections.
Appellant appealed to the Commonwealth Court, and Appellee maintained that
Appellant neither had standing to appear as a party/objector before the Board nor
standing to appeal to the courts. A unanimous panel of the Commonwealth Court
“affirm[ed] the [Board’s] decision on different grounds than those of the trial court.” S.
Bethlehem Associates, LP v. Zoning Hearing Bd. of Bethlehem Twp., 321 C.D. 2020,
2021 WL 303046, at *1 (Pa. Commw. Jan. 29, 2021) (non-precedential decision). Unlike
the lower tribunals, the Commonwealth Court found that “the issue of standing” was
“determinative,” and it did not reach the substantive issues raised by Appellant pertaining
to the legality of the variances. Id. at *1. In further contrast, the Commonwealth Court
treated the present dispute as hinging on a traditional standing inquiry. It did not consider
the impact of the Board’s finding that Appellant was a “party” pursuant to the MPC and
Zoning Code and that Appellant did not prevail before the Board. In fact, the
Commonwealth Court did not mention the MPC at all, let alone cite any provision of it or
reference its definition of “party.”
[J-81-2022] [MO: Mundy, J.] - 6
Rather, with regard to standing, the Commonwealth Court explained that “[o]ther
than municipalities, persons who fail to appear or otherwise object before the zoning
hearing board lack standing and cannot appeal an adverse decision to the trial court.” Id.
at *2 (citing Leoni v. Whitpain Twp. Zoning Hearing Bd., 709 A.2d 999 (Pa. Commw.
1998)). Additionally, the Commonwealth Court stated, based solely on citation to our
decision in Spahn v. Zoning Board of Adjustment, that “a party must demonstrate that he
or she is an aggrieved person in order to have standing to appeal.” Id. (citing Spahn v.
Zoning Bd. of Adjustment, 977 A.2d 1132, 1149 (Pa. 2009)). Further, the court explained
that while an adjoining neighbor who testifies in opposition to an application generally will
have standing, more than mere proximity to the property is required to establish aggrieved
party status. Id. (citing Soc’y Created to Reduce Urban Blight (SCRUB) v. Zoning Hearing
Bd. of Adjustment of the City of Phila., 951 A.2d 398, 404 (Pa. Commw. 2008); In re
Application of Brandywine Realty Tr., 857 A.2d 714 (Pa. Commw. 2004)). To be
aggrieved, a person must have a substantial, direct, and immediate interest in the matter.
Id. (citing William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa.
1975)).
As the above demonstrates, the Commonwealth Court simply drew a distinction
between standing to appear before the Board as a party/objector (by citation to Leoni)
and standing to appeal to the courts (by citation to Spahn, SCRUB, etc.). However,
although the parties presented distinct arguments as to standing to appear as a
party/objector and standing to appeal, the Commonwealth Court did not specify whether
it conducted these distinct inquiries, and it did not further elaborate upon the distinction.
Apparently in regard to Appellant’s standing to appear before the Board, the court noted
that Appellant was neither Appellee’s next-door neighbor nor within a radius to receive
automatic notification of the application. Id. (citing N.T., 5/29/2019, at 12-13). Rather,
[J-81-2022] [MO: Mundy, J.] - 7
the court observed, counsel only asserted in support of standing that Appellant’s proximity
established an “implied interest in the current applicant’s intent to place a hotel just two
blocks away from our hotel.” Id. (quoting N.T., 5/29/2019, at 13). On the other hand, the
Commonwealth Court acknowledged that Appellant participated at the Board hearing,
“limited to its attorney’s cross-examination of Appellee’s witnesses and legal argument in
opposition to the variances,” and that the Board accepted counsel’s representation that
his client owned the Courtyard Marriott at 2220 Emrick Boulevard. Id. (citing N.T.,
5/29/2019, at 12-13). As such, the Commonwealth Court did not make a finding that
Appellant was not a proper party/objector before the Board.
Relative to standing to appeal the Board’s decision, the Commonwealth Court
explained that it had previously held that a zoning appeal cannot be used as a method to
deter free competition, but that a competitor is not precluded from establishing
aggrievement under such precedent. Id. (citing In re: Farmland Indus., Inc., 531 A.2d 79,
84 (Pa. Commw. 1987)). To establish aggrievement in such a case, the asserted negative
impact must originate from the variances sought and not simply from the competition
expected from an incoming business. Id. Absent such aggrievement, the court stated it
would reject a competitor’s use of the zoning process “to impede the location of a
competitor in its trading area.” Id. (citing In re: Farmland Indus., Inc., 531 A.2d at 84).
The court found that Appellant “failed to articulate, let alone substantiate a particular harm
that it would suffer from the reduced setbacks, nor from the waiver of the berm
requirement.” Id. The court reiterated that Appellant’s property did not border the
proposed site and that Appellant did not establish that it would be able to view either the
reduced setback or the absence of an earth berm from its property. Id. As such, the
Commonwealth Court concluded that Appellant “failed to meet its burden to establish
[J-81-2022] [MO: Mundy, J.] - 8
standing” and therefore declined to address Appellant’s substantive objections to
Appellee’s application. Id.In sum, the Commonwealth Court was faced with two questions: (1) whether
Appellant had standing to appear before the Board as a party/objector and (2) whether
Appellant had standing to appeal to the trial court. The Commonwealth Court only
decided that Appellant did not have standing to appeal to the trial court because it was
not aggrieved by Appellee’s requested variances. The Commonwealth Court did not find
that the Board erred in finding that Appellant was a proper party/objector with standing to
oppose the variances at the May 29, 2019 Board hearing. This fact notwithstanding, the
Commonwealth Court affirmed the trial court’s order affirming the Board’s grant of the
variances, albeit “on different grounds than those of the trial court.” Id. 3
Appellant petitioned this Court for discretionary review, alleging, among other
reasons, that the Commonwealth Court’s standing inquiry was deficient pursuant to the
MPC. We granted review of the following two issues:
(1) Whether the Commonwealth Court of Pennsylvania
erroneously applied an aggrieved party standard that was
repealed by the legislature and replaced by a provision
granting [Appellant] the right to appeal since it was deemed a
party and opposed the proposed zoning relief during the
underlying [zoning hearing board] hearing.[4]
3 I question the appropriateness of the Commonwealth Court’s disposition. It did not
consider the merits of the appeal because of its conclusion that Appellant lacked standing.
Under the circumstances, the appropriate disposition was dismissal of the appeal.
4 The Majority limits its analysis to consideration of whether Appellant had traditional
standing to appeal to the courts, see Majority Opinion at 4 (“We granted allocatur limited
to whether the Commonwealth Court erred in holding that Appellant lacked standing to
seek judicial review”), although it also seems to accept the Board’s conclusion that
Appellant was a party pursuant to Section 908(3). See id. (citing N.T., 5/29/19, at 34-35)
(“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.”). However, the first issue over which we
(continued…)
[J-81-2022] [MO: Mundy, J.] - 9
(2) Whether the Commonwealth Court of Pennsylvania
erroneously entered an order dismissing the appeal due to
lack of standing pursuant to [Pennsylvania Rule of Appellate
Procedure] 1114(b)(7)] where [Appellant,] who was located
only two (2) blocks from the subject property[,] had a right to
an appeal even if an aggrieved party standard is applied.
S. Bethlehem Associates, LP v. Zoning Hearing Bd. of Bethlehem Twp., 275 A.3d 484(Pa. 2022) (per curiam). 5
II. Parties’ Arguments
In support of its argument that the Commonwealth Court erred by concluding that
it lacked standing, Appellant focuses upon the MPC as the basis for standing to appear
before a zoning board. It highlights that the General Assembly repealed the portions of
the MPC that required application of an “aggrieved party” standard in favor of an “affected
party” standard, as was applied by the Board and trial court. Specifically, Appellant
argues that Section 1007 of the MPC previously provided for an aggrieved party standard,
but that section, along with Sections 1003 to 1011 of the MPC, 53 P.S. §§ 11003-11011,
were repealed and replaced on December 21, 1988. Appellant maintains that Section
908 now governs standing in relation to zoning board appeals and that through Section
908, the General Assembly broadened the standing to appeal a zoning decision to any
party opposing the granted zoning relief at the time of the zoning board hearing. See 53
P.S. § 10908(3) & (9). Appellant observes that Section 908(3) of the MPC provides that
granted allocatur, and the accompanying argument presented by Appellant,
encompasses the question of the application of Section 908(3). See infra pp. 10-11
(Appellant’s argument regarding Section 908(3)) & pp. 15-18, 23-25 (explaining that
“party” status under Section 908(3) is a prerequisite to standing to appeal to the courts).
5 The language of the first question over which we granted review (i.e., the reference to
“the right to appeal”) further reflects our conclusion that the Commonwealth Court’s
decision was based solely on a finding that Appellant lacked standing to appeal to the
trial court.
[J-81-2022] [MO: Mundy, J.] - 10
“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.” Further, Section 908(9) refers to the right of a non-prevailing party to appeal to a
court of competent jurisdiction.
Applying the “affected party” standard set forth in Section 908(3), Appellant
maintains that the record establishes that Appellant owns a competing hotel within two
blocks of the subject property and that Appellant is, therefore, affected by the application.
Further, Appellant notes that it timely made an appearance of record before the Board at
the May 29, 2019 hearing through counsel, counsel’s mistaken identification of his client
notwithstanding. In addition, Appellant explains that the record also reflects that Appellant
was a “person … permitted to appear by the [zoning hearing] board,” which alone satisfies
Section 908(3)’s standing requirement. See N.T., 5/29/2019, at 33-34; 53 P.S. §
10908(3). Appellant faults the Commonwealth Court for disregarding these facts and
instead relying upon authority that predated the current provisions of the MPC to find that
Appellant lacked standing. Appellant asks the Court to vacate the order of the
Commonwealth Court and remand the matter for consideration of the merits of Appellant’s
challenge to the requested variances. 6
The Board, as a technical appellee, maintains that it correctly determined that
Appellant had standing to appear before it at the May 29, 2019 zoning hearing in
opposition to Appellee’s request for two dimensional variances. First, the Board agrees
6 Alternatively, Appellant argues that even if the aggrieved party standard is applied, the
Commonwealth Court erred in dismissing the appeal due to a lack of standing because
Appellant’s hotel is located only two blocks from the subject property, and testimony was
elicited from Appellee’s expert that a smaller hotel could be built or other uses could have
been employed at the subject property in a manner more consistent with the existing
zoning ordinance regulations, which would be less detrimental to Appellant’s hotel.
[J-81-2022] [MO: Mundy, J.] - 11
with Appellant that Appellant appeared at the May 29, 2019 Board hearing through its
legal counsel, Attorney Stevens, and that his misidentification of his client is immaterial.
Second, the Board explains that its standing determination was properly predicated upon
its review of Section 275-12 (E) of the Zoning Code, which defines a party in precisely the
same manner as Section 908 of the MPC:
Parties. The parties to the hearing shall be the Township, any
person affected by the application who has made timely
appearance of record before the Zoning Hearing Board and
any other person including civic or community organizations
permitted to appear by the Zoning Hearing Board. The Zoning
Hearing Board shall have power to require that all persons
who wish to be considered parties enter appearances in
writing on forms provided by the Zoning Hearing Board for that
purpose.
Bethlehem Township Zoning Code, § 275-12 (E). See also 53 P.S. § 10908(3).
The Board notes that while the MPC and Zoning Code do not define the term
“person,” Pennsylvania courts have consistently held with regard to zoning appeals, that
a corporation is a legal person that is separate and distinct from its shareholders. Bradley
v. Zoning Hearing Bd. of New Milford, 63 A.3d 488, 492 (Pa. Commw. 2013) (citing
Barium Steel Corp. v. Wiley, 108 A.2d 336, 341 (Pa. 1954)). Further, the Board explains
that its determination at the May 29, 2019 hearing that Appellant had standing was
predicated upon two factors: (1) Appellant entered its timely appearance at the time of
the initial hearing, see Appeal of Greco, 254 A.2d 6, 7 (Pa. 1969) (“There is but one way
to become a party litigant in a court and that is by appearing in the proceedings.”); and
(2) the Board was convinced by Appellant’s argument at the hearing that it was “affected
by the application” because Appellant owns the hotel located approximately two blocks
from the proposed construction site. The Board notes that it was cognizant of the fact
that when a “property is located in close proximity to the subject property … the zoning
decision is presumed to have an effect on the property owner’s property” as a matter of
[J-81-2022] [MO: Mundy, J.] - 12
law. Laughman, 964 A.2d at 22. Thus, because Appellant satisfied the definition of
“party” under the MPC and Zoning Code, the Board stands by its finding that Appellant
had standing to appear before it as a party/objector. As such, the Board maintains that
Appellant, as a party, was free to appeal the Board’s decision to the courts. On the other
hand, the Board stands by its decision to grant the variances and, therefore, urges this
Court to reverse the Commonwealth Court only with regard to Appellant’s standing.
Appellee maintains that the Commonwealth Court was correct to apply the
aggrieved party standard. Appellee contends that Section 908 of the MPC did not
broaden standing. In support of its claim that the aggrieved party standard is the only
applicable standard, Appellee points to Section 913.3 of the MPC, which is entitled
“[p]arties appellant before the board” and provides that “[a]ppeals under [S]ection
909.1(a)(1), (2), (3), (4), (7), (8) and (9) may be filed with the board in writing by the
landowner affected, any officer or agency of the municipality, or any person aggrieved.”
Id. § 10913.3 (footnote omitted). See also 53 P.S. § 10909.1(a)(1), (2), (3), (4), (7), (8),
(9) (relating to the zoning board’s jurisdiction to hear certain types of appeals). Appellee
also points to Section 1002.1-A(c) of the MPC, which provides that “[a]ppeals under this
section shall only be permitted by an aggrieved person who can establish that reliance
on the validity of the challenged decision resulted or could result in a use of property that
directly affects such person’s substantive property rights.” 53 P.S. § 11002.1-A(c).
Appellee then explains that to establish “aggrieved” status, a party must have a
substantial, direct and immediate interest in the claim sought to be litigated. Laughman,
964 A.2d at 22. A substantial interest is one in which there is some discernable adverse
effect to some interest other than the abstract interest all citizens have. Pittsburgh Trust
for Cultural Res. v. Zoning Hearing Bd. Adjustment for the City of Pittsburgh, 604 A.2d
298, 303 (Pa. Commw. 1992). A direct interest requires a showing that the matter
[J-81-2022] [MO: Mundy, J.] - 13
complained of causes harm to the parties’ interest. Id. Immediacy requires that the
interest is something more than a remote consequence and centers on a causal nexus
between the action complained of and the injury to the party challenging it. Id.Applying the aggrieved party standard, Appellee argues that Appellant has no
substantial, direct and immediate interest but rather, has pursued an improper land use
appeal simply to avoid commercial competition from another hotel. Appellee explains
that Appellant does not have a direct interest in the requested relief because Appellant
would not be impacted by the setback and earthen berm variances, which are along a
common property line with Madison Farms, an unrelated development. 7 Appellee
highlights that Appellant’s property does not adjoin its property and that Appellant’s
property is not located within the radius to have received the required automatic
notification of Appellee’s zoning hearing. Further, Appellee alleges that at the Board
hearing, Appellant did not testify, did not put on any witnesses, and did not present
evidence or argument regarding how it would be harmed by the requested variances, but
instead admitted that its objections were based on competition from a new hotel. Thus,
Appellee insists that Appellant failed to show that it would be affected by the requested
relief, much less that Appellant is aggrieved.
Appellee additionally focuses on Attorney Stevens’ identification of his client at the
May 29, 2019 Board hearing as South Mountain Associates, LP. Appellee notes that
South Mountain Associates is an active Pennsylvania limited partnership, is not a party
to this appeal and is not the Appellant. Building on this premise, Appellee maintains that
although Appellant filed the subsequent appeals of the Board’s grant of the variances to
the trial court, Commonwealth Court and this Court, Appellant did not participate in the
7 Appellee notes that no one connected with Madison Farms appeared at the May 29,
2019 Board hearing to object to the proposed variances.
[J-81-2022] [MO: Mundy, J.] - 14
May 29, 2019 Board hearing. 8 Thus, Appellee concludes that the Commonwealth Court
properly determined Appellant failed to show that it had standing to file this appeal.
Alternatively, Appellee submits that even if this Court disagrees with the Commonwealth
Court, Appellant lacks standing to bring the present appeal under Pa.R.A.P. 501, on the
ground that Appellant was not aggrieved by the Commonwealth Court’s order.
III. Analysis
The questions raised in this appeal involve the appropriate standard to be applied
in determining the standing of a party to object to a request for relief from a zoning hearing
board. Although the Commonwealth Court’s opinion is somewhat muddled in this regard,
the answer to the predicate question of standing before the Board controls the
subsequent question of standing to appeal to the Common Pleas and Commonwealth
Courts.
Issues involving standing present a pure question of law. Fumo v. City of Phila.,
972 A.2d 487, 496 (Pa. 2009) (citing In re Milton Hershey Sch., 911 A.2d 1258 (Pa.
2006)). As with all questions of law, this Court’s standard of review is de novo and its
scope of review is plenary. Gorsline v. Bd. of Supervisors of Fairfield Twp., 186 A.3d 375,
385 (Pa. 2018). In deciding this appeal, an interpretation of the MPC is required guided
by the Statutory Construction Act. 1 Pa.C.S. §§ 1501–1991. The Act provides that a
court’s proper role in interpreting and construing a statute is to determine the intent of the
General Assembly. 1 Pa.C.S. § 1921(a). Generally, when the language of a statute is
clear and free from all ambiguity, a court should not disregard the letter of the statute in
order to pursue its spirit. 1 Pa.C.S. § 1921(b). When the words of a statute are
unambiguous, the plain language is the “paramount indicator of legislative intent.” Snyder
8 I will not further consider this argument. The record is clear that the Board understood
the proper identity of Appellant in the proceedings.
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Bros., Inc. v. Pa. Pub. Util. Comm’n, 198 A.3d 1056, 1071 (Pa. 2018), order amended on
reconsideration, 203 A.3d 964 (Pa. 2019).
“The requirement of standing under Pennsylvania law is prudential in nature, and
stems from the principle that judicial intervention is appropriate only where the underlying
controversy is real and concrete, rather than abstract.” City of Phila. v. Commonwealth,
838 A.2d 566, 577 (Pa. 2003) (citing In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003)). As
this Court more recently explained:
The touchstone of standing is “protect[ing] against improper
plaintiffs.” In re Application of Biester, [] 409 A.2d 848, 851
([Pa.] 1979). To do so, courts require a plaintiff to
demonstrate he or she has been “aggrieved” by the conduct
he or she challenges. In re Hickson, [] 821 A.2d 1238, 1243
([Pa.] 2003). To determine whether the plaintiff has been
aggrieved, Pennsylvania courts traditionally examine whether
the plaintiff’s interest in the outcome of the lawsuit is
substantial, direct, and immediate. Robinson Twp.,
[Washington Cnty. v. Commonwealth,] 83 A.3d [901,] 917
[(Pa. 2013)]. “A party’s interest is substantial when it
surpasses the interest of all citizens in procuring obedience to
the law; it is direct when the asserted violation shares a causal
connection with the alleged harm; finally, a party’s interest is
immediate when the causal connection with the alleged harm
is neither remote nor speculative.” Commonwealth, Office of
Governor v. Donahue, [] 98 A.3d 1223, 1229 ([Pa.] 2014).
Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467, 481 (Pa. 2021).
As discussed by Appellee (but overlooked by the Majority), standing to appeal to
this Court and the Commonwealth Court implicates Pennsylvania Rule of Appellate
Procedure 501, which provides in full that “[e]xcept where the right of appeal is enlarged
by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate
or trust is so aggrieved, may appeal therefrom.” Pa.R.A.P. 501. 9 Although Rule 501
9 I note that the Rules of Appellate Procedure do not apply to the courts of common pleas
vested with jurisdiction to decide an appeal from local agency adjudications unless that
(continued…)
[J-81-2022] [MO: Mundy, J.] - 16
references aggrievement, such aggrievement is generally established by virtue of the fact
that a party did not prevail before the lower court. The requirement prevents a prevailing
party from filing an appeal and therefore placing the appellate court in the position of
providing an impermissible advisory opinion. United Parcel Service, Inc. v. Pa. Pub. Util.
Comm’n, 830 A.2d 941, 948 (Pa. 2003). Put simply, pursuant to Rule 501, a prevailing
party cannot be aggrieved by a grant of relief, while in general, a non-prevailing party is
obviously aggrieved by an adverse decision. See, e.g., Almeida v. W.C.A.B. (Herman
Goldner Co.), 844 A.2d 642, 644 (Pa. Commw. 2004) (holding, in spite of claimant’s
objection to the WCJ’s finding that claimant did not suffer a disc herniation, claimant could
not be aggrieved without diminution in his benefits, unless subsequently altered by some
further decision and order); Interest of K.C., 156 A.3d 1179, 1182 (Pa. Super. 2017)
(finding government agency demonstrated it was an aggrieved party because the trial
court denied it the full relief requested).
Although not governed by Rule 501, the same has long been true of appeals from
zoning board decisions to the trial court. In fact, as the trial court noted, it is a common
refrain in Pennsylvania zoning jurisprudence that standing to appeal a zoning board’s
decision is established when it is based upon the appellant’s unsuccessful participation
at the zoning hearing board proceedings as a party/objector. See, e.g., In re Larsen, 616
A.2d 529, 592 (Pa. 1992) (per curiam) (explaining that when a person is permitted to
appear in opposition to an application to a zoning hearing board and permitted to cross-
examine witnesses and present evidence, he or she is a party to those proceedings and
is entitled to appeal an adverse decision as an aggrieved party), superseded on other
grounds by constitutional amendment as stated in In re Angeles Roca First Judicial
court has specifically adopted those rules. Thompson v. Zoning Hearing Bd. of Horsham
Twp., 963 A.2d 622, 625 n.6 (Pa. Commw. 2009).
[J-81-2022] [MO: Mundy, J.] - 17
District Philadelphia Cnty., 173 A.3d 1176, 1184 (Pa. 2017); Thompson v. Zoning Hearing
Bd. of Horsham Twp., 963 A.2d 622, 625 (Pa. Commw. 2009) (holding that because
Thompson appeared and participated as a party before the board without objection by
the landowner, he necessarily was aggrieved by the Board’s adverse decision and had
standing to appeal that decision to the trial court, even though Thompson had no direct,
immediate, substantial or pecuniary interest in the matter); Grant, 776 A.2d at 358-59(“[I]ndividuals who have party status before the board may seek an appeal to the trial
court as a party aggrieved.”); Baker v. Zoning Hearing Bd., 367 A.2d 819, 823 (Pa.
Commw. 1976); Active Amusement Co. v. Zoning Bd. of Adjustment, 479 A.2d 697, 700
(Pa. Commw. 1984) (holding that the board’s permitting Active to appear before it through
its counsel qualified Active under the MPC as a “party” and the adverse decision of the
board rendered Active a party “aggrieved” for purposes of appeal to the courts). In other
words, a non-prevailing party before the zoning board is, in essence, automatically
“aggrieved” (i.e., establishes an interest that is substantial, direct, and immediate) for
purposes of appeal to the courts by virtue of the adverse decision reached by the zoning
board. 10
This longstanding body of caselaw notwithstanding, the Commonwealth Court
found that Appellant lacked standing to appeal to the trial court because it did not satisfy
the traditional test for standing, i.e., that its interest was substantial, direct and immediate.
Specifically, the Commonwealth Court found that Appellant lacked standing to appeal the
10 The Majority posits that in relevant part, the MPC is “silent on the prerequisites for
appealing to court[,]” and “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.” See
Majority Opinion at 6-7. If the General Assembly so intended, then this long line of
caselaw demonstrates that the courts of this Commonwealth long ago determined that
such standing to appeal to the trial court would be conferred consistent with Pa.R.A.P.
501 to a non-prevailing party before the board.
[J-81-2022] [MO: Mundy, J.] - 18
Board’s decision to the trial court because Appellant did not establish that it was aggrieved
by the grant of the specific variances at issue. To require such a showing by Appellant,
the court relied on Spahn for the proposition that “a party must demonstrate that he or
she is an aggrieved person in order to have standing to appeal” to the trial court. S.
Bethlehem Associates, LP, 2021 WL 303046, at *1 (citing Spahn, 977 A.2d at 1149). This
reliance was misplaced. In Spahn, the appeal arose from the General Assembly’s
enactment of Section 17.1 of the First Class City Home Rule Act (“Home Rule Act”), 53
P.S. § 13131.1. 11 The specific issues raised in the appeal were whether the General
Assembly removed general taxpayer standing from the Philadelphia Code by enacting
Section 17.1 of the Home Rule Act; whether such action violated the single subject rule
of the Pennsylvania Constitution; and whether the Appellants had standing to pursue
zoning challenges “under traditional notions of standing.” Spahn, 977 A.2d at 1136. This
Court agreed with the Commonwealth Court that following the enactment of Section 17.1,
taxpayer standing was no longer viable under the Philadelphia Zoning Ordinance. Id.
Relevant for present purposes, in a footnote, the Spahn Court stated:
Appellants SCRUB and the civic organizations also assert
that they have standing because they participated in the
hearings before the [Philadelphia zoning b]oard. According to
Appellants, the Commonwealth Court has allowed standing to
a party based upon mere participation as objectors before a
zoning board. See Johnson v. Zoning Hearing Bd. of Richland
Twp., [] 503 A.2d 1117 ([Pa. Commw.] 1986); Baker v. Zoning
Hearing Bd. of West Goshen, 367 A.2d 819 (Pa. Commw.
1976). This argument, however, fails to acknowledge the
effect of Section 17.1, which, as discussed previously, limited
11 Section 17.1 provides that “[i]n addition to any aggrieved person, the governing body
vested with legislative powers under any charter adopted pursuant to this act shall have
standing to appeal any decision of a zoning hearing board or other board or commission
created to regulate development within the city. As used in this section, the term
‘aggrieved person’ does not include taxpayers of the city that are not detrimentally harmed
by the decision of the zoning hearing board or other board or commission created to
regulate development.” 53 P.S. § 13131.1.
[J-81-2022] [MO: Mundy, J.] - 19
standing to “aggrieved persons” as defined by William Penn
and its progeny.
Id. at 1150 n.12.
The Spahn Court’s stated reason for rejecting the previously well-established
party-status based standing to appeal a zoning board decision and instead requiring an
additional showing of traditional aggrievement was solely based on Section 17.1.
Pertinently, the Spahn Court provided the following interpretation of Section 17.1:
The language of this section is clear. The intent of Section
17.1 was to give the specific power of standing to appeal a
decision of a zoning hearing board within a city of the first
class to the governing body vested with legislative powers
and to “aggrieved persons.” Notably, the statute does not
define the term “aggrieved person” except to state what an
aggrieved person is not—a taxpayer that has not been
detrimentally harmed by a zoning decision, i.e., taxpayers
generally. Moreover, Section 17.1 is contained in the First
Class City Home Rule Act and Philadelphia presently is the
only city of the first class in Pennsylvania. Thus, the plain
language of the section leads to the inescapable conclusion
that the General Assembly intended to limit standing to appeal
a zoning decision in the City to two classes—the governing
body and aggrieved persons—while specifically excluding the
broader category of taxpayers.
Id. at 1143 (emphasis added).
Obviously, Section 17.1 and Spahn only apply to cities of the first class in the
Commonwealth, i.e., Philadelphia. Our decision in Spahn does not impact the analysis
in the present case, and the Commonwealth Court’s reliance upon it was misplaced.
Therefore, I would reaffirm the longstanding rule that a non-prevailing objector may
establish standing to appeal to the trial court when the objector has obtained party status
before the zoning hearing board. Thus, I would hold that the Commonwealth Court erred
in requiring Appellant to prove that it was traditionally aggrieved by the Board’s grant of
the variances to Appellee by establishing a substantial, direct and immediate interest in
the issuance of the variances. Rather, the question of whether Appellant had standing to
[J-81-2022] [MO: Mundy, J.] - 20
appeal to the trial court (and in turn, to the Commonwealth Court and this Court pursuant
to Rule 501) should be answered affirmatively if the two established conditions are met:
(1) the Board properly allowed Appellant to appear and participate at the hearing; and (2)
Appellant did not prevail before the Board.
Appellee argues that Section 913.3 of the MPC 12 governs. Appellee’s Brief,
5/31/2022, at 9-10. However, Appellee fails to recognize that the Board hearing at issue
was an original proceeding and not an appeal of a prior decision by a municipal officer.
Section 913.3 only applies to the latter situation. The first appeal in the course of these
proceedings, and thus, first stage at which Appellant was an appellant, was in its appeal
to the trial court. As the trial court explained, by its plain terms, Section 913.3 “only
governs appeals before the zoning hearing board,” and further, does not apply to “appeals
before the courts of common pleas.” Trial Court Opinion, 2/14/2020, at 7 n.9.
As to standing to appeal to the trial court, Appellee argues that Appellant’s appeal
rights are controlled by Section 1002.1-A(c) of the MPC. Appellee’s reliance here is
misplaced. Section 1002.1-A applies only to “all appeals challenging the validity of a land
use decision on the basis of a defect in procedures prescribed by statute or ordinance.”
12 Section 913.3 provides:
§ 10913.3. Parties appellant before the board
Appeals under section 909.1(a)(1), (2), (3), (4), (7), (8) and
(9)1 may be filed with the board in writing by the landowner
affected, any officer or agency of the municipality, or any
person aggrieved. Requests for a variance under section
910.22 and for special exception under section 912.13 may be
filed with the board by any landowner or any tenant with the
permission of such landowner.
1 53 P.S. § 10909.1(a)(1), (2), (3), (4), (7), (8), (9).
2 53 P.S. § 10910.2.
3 53 P.S. § 10912.1.
53 P.S. § 10913.3.
[J-81-2022] [MO: Mundy, J.] - 21
53 P.S. § 11002.1-A(a). Section 1002.1-A(c) provides that “[a]ppeals under this section
shall only be permitted by an aggrieved person who can establish that reliance on the
validity of the challenged decision resulted or could result in a use of property that directly
affects such person’s substantive property rights.” Id. § 11002.1-A(c). Appellant raises
no such procedural defect claim, such as, for example, a failure to provide any notice
allegedly required by the MPC. Rather, Appellant has raised substantive challenges to
the Board’s grant of the variances. Thus, Section 1002.1-A(c) and its aggrievement
requirement are simply not implicated.
Appellant urges that the Board and trial court correctly determined its standing to
participate in the Board hearing based on Section 908(3), which provides:
The parties to the 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.
Id. § 10908(3).
I agree with the Majority to the extent that it finds that the Board was correct to
employ Section 908(3). See Majority Opinion at 5. The language of the MPC is clear. 13
The MPC provides that the procedures set forth in Article X-A are the “exclusive mode for
securing review of any decision rendered pursuant to Article IX.” 53 P.S. § 11001-A.
13 As I would find that the present language of the MPC is unambiguous as to the proper
inquiry into Appellant’s standing, there is no need to consider the effect of former Article
X, which included multiple references to aggrievement and the repeal of which Appellant
heavily relies. When a statute is clear and unambiguous, its plain language is the best
indicator of legislative intent. Snyder Bros., Inc., 198 A.3d at 1071. Thus, there is no
need to resort to other sources such as former versions of the MPC. Cf. 1 Pa.C.S. §
1921(c) (“When the words of the statute are not explicit, the intention of the General
Assembly may be ascertained by considering, among other matters … [t]he former law,
if any, including other statutes upon the same or similar subjects.”).
[J-81-2022] [MO: Mundy, J.] - 22
Within Article IX, the procedure for hearings, including who may be a “party,” before the
zoning hearing board is set forth, under the title “Hearings,” in Section 908 of the MPC,
53 P.S. § 10908. Section 908 contains no references to aggrievement and does not use
any form of the word “aggrieved.” Instead, Section 908(3) defines parties as: the
municipality, a person affected by the application who has made timely appearance
before the Board, and any other person including civic or community organizations
permitted to appear before the Board.
On the other hand, I disagree with the Majority’s decision to allow the Board’s
application of Section 908(3) in this case to stand. Given my feelings regarding standing
to secure judicial review, I would remand to the Commonwealth to apply Section 908(3),
given its failure to consider Section 908(3) in any manner. On the other hand, as the
Majority concludes that a Section 908(3) party must additionally prove aggrievement to
secure judicial review, the Majority finds that Appellant satisfied Section 908(3)’s definition
of party (and thus, its standing to challenge the variances before the Board) but affirms
the Commonwealth Court’s dismissal of Appellant’s appeal for lack of standing. The
Majority implies that the Board correctly found that Section 908(3) was satisfied based on
the provision that a party “shall be … any other person including civic or community
organizations permitted to appear by the board.” See Majority Opinion at 5 (quoting 53
P.S. § 10908(3)). See id. (citing N.T., 5/29/19, at 34-35) (“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.”)). However, I believe this issue requires further consideration of whether
the ejusdem generis doctrine limits application of this provision to “any other person” of
the same class as “civic or community organizations.” Notwithstanding this interpretative
issue, it is possible that the Board correctly concludes that Appellant was a “person
[J-81-2022] [MO: Mundy, J.] - 23
affected by the application who has made timely appearance of record before the board.”
53 P.S. § 10908(3).
In my view, the question as to whether Appellant met one of these requisites to
become a party to the hearing under Section 908 should instead be directed to the
Commonwealth Court in the first instance. If the question is answered in the affirmative
by that court, then Appellant should be found to have standing to appeal to the trial court
because Appellant did not prevail before the Board. 14 See, e.g., Larsen, 616 A.2d at 592;
Thompson, 963 A.2d at 625; Grant, 776 A.2d at 358-59; Baker, 367 A.2d at 823; Active
Amusement Co., 479 A.2d at 700. 15 Because Appellant did not prevail in the trial court,
14 As the Commonwealth Court aptly stated in Baker:
Having appeared and participated as a party before the
[b]oard, [the appellant] was necessarily aggrieved by the
adverse decision of the [b]oard. To hold otherwise would
reduce to a nullity for purposes [of] appeal [the] obtaining of
the status of a party before zoning hearing boards.”
Baker, 367 A.2d at 823.
15 I am unpersuaded by the Majority’s reliance on Hickson. See Majority Opinion at 8-
10. The Majority suggests that its disposition is consistent with 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,” because the
MPC is silent with regard to the ability of a party to seek judicial review. Id. at 9-10 (citing
Hickson, 821 A.2d at 1243). However, as explained, the MPC is not silent as to appeals
to court, as the Majority suggests. The MPC provides that the procedures set forth in
Article X-A are the “exclusive mode for securing review of any decision rendered
pursuant to Article IX.” 53 P.S. § 11001-A (emphasis added). When enacting Article X-
A, the General Assembly expressly provided for two scenarios where aggrievement would
be required for an appeal to the zoning board/court, and if it wished to require such
aggrievement in all cases, it would have said so. See discussion infra pp. 20-23. Thus,
Hickson, which involved a discrete rule that was truly silent as to standing to appeal to
the courts, is readily distinguishable from the present case, which involves a statutory
scheme that is not silent in this regard.
I also take issue with the Majority’s reference to the Local Agency Law and its “appeal-
to-court” provisions. See Majority Opinion at 7 n.4; 2 Pa.C.S. §§ 751-752. The Majority
acknowledges that none of the parties raised the Local Agency Law. See id. I presume
(continued…)
[J-81-2022] [MO: Mundy, J.] - 24
it would also have standing to appeal to the Commonwealth Court, which would defeat
the argument presently raised by Appellee.
The Commonwealth Court incorrectly applied an aggrieved party standard instead
of Section 908. Applying the incorrect test for standing, it found that Appellant lacked
standing to appeal to the courts because Appellant’s economic concerns related to its
hotel business did not rise to the level of aggrievement. However, within the context of
the MPC, the General Assembly, as is its prerogative, limited the application of the
traditional aggrieved party standard to certain circumstances, and those circumstances
are not presented here. Thus, the Commonwealth Court erred. The trial court found that
Appellant was properly a party under Section 908(3) of the MPC and that it had standing
to appeal because it did not prevail before the Board. As the Commonwealth Court did
not conduct this inquiry, I would find that we are constrained to remand to the
Commonwealth Court for an analysis of whether the trial court properly applied Section
908(3) to the facts of the present case. If the trial court correctly determined that the
Board properly applied Section 908(3) by making Appellant a party to the hearing, then
the Commonwealth Court would be required reach the merits of the appeal.
that the parties did not do so for good reason, as it appears that the Local Agency Law
and its aggrievement requirement, like Hickson, would only apply if the MPC were silent
as to standing to appeal to the courts. Cf. Nernberg v. City of Pittsburgh, 620 A.2d 692,
694 n.5 (Pa. Commw. 1993) (noting Local Agency Law applied based on court’s finding
that Pittsburgh was not subject to the MPC at all, as both a city of the second class and
a municipality within a county of the second class); Metal Green, Inc. v. City of Phila., 266
A.3d 495, 515 (Pa. 2021) (plurality) (stating, in the context of a Philadelphia Zoning Board
of Adjustment decision, that Local Agency Law governed review of zoning board decision,
but did so in determining standard of review for reviewing court, not related to standing).
See also discussion of Spahn, supra pp. 17-19.
[J-81-2022] [MO: Mundy, J.] - 25
Having concluded that the Commonwealth Court erred by misapplying the law, I
would vacate its order and remand for further proceedings consistent with this opinion. 16
As the Majority reaches the opposite conclusion, I respectfully dissent.
Justice Wecht joins this dissenting opinion.
16 As I would find that the Commonwealth Court erred in applying the traditional aggrieved
party standard to deny Appellant’s appeal, I would not reach the second question
presented, which asks whether Appellant was otherwise an aggrieved party, and express
no opinion as to whether the facts of this case could also support a finding of traditional
aggrievement (i.e., whether Appellant’s competition-based claims rise to the level of an
interest that is direct, immediate and substantial). In this vein, and contrary to the
Majority’s disposition, the Commonwealth Court’s Farmland decision is not relevant to my
analysis, given that it relates to the application of the traditional aggrieved party standard.
[J-81-2022] [MO: Mundy, J.] - 26