S. Bethlehem Assoc., LP v. ZHB of Bethlehem Twp., PA v. Central PA Equities 30, LLC ~ Appeal of S. Bethlehem Assoc., LP ( 2021 )


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  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    South Bethlehem Associates, LP               :
    :
    v.                            :   No. 321 C.D. 2020
    :   ARGUED: December 7, 2020
    Zoning Hearing Board of Bethlehem            :
    Township, Pennsylvania                       :
    :
    v.                            :
    :
    Central PA Equities 30, LLC                  :
    :
    Appeal of: South Bethlehem                   :
    Associates, LP                               :
    BEFORE:       HONORABLE P. KEVIN BROBSON, Judge1
    HONORABLE J. ANDREW CROMPTON, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    SENIOR JUDGE LEADBETTER                                     FILED: January 29, 2021
    Objector, South Bethlehem Associates, LP, appeals from an order of
    the Court of Common Pleas of Northampton County that affirmed the decision of
    the Zoning Hearing Board of Bethlehem Township (ZHB). Although the ZHB
    determined that Objector had standing, it granted two variances under the Bethlehem
    Township Zoning Code to Applicant, Central PA Equities 30, LLC, to construct a
    hotel at 2401 Emrick Boulevard in Bethlehem Township. We disagree with the trial
    court that Objector, a competing hotel, had standing to challenge the variances and,
    1
    This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
    became President Judge.
    (Footnote continued on next page…)
    therefore, do not reach the merits of the ZHB’s decision. Consequently, we affirm
    the ZHB’s decision on different grounds than those of the trial court.2
    Applicant proposes to build a 107-room, 4-story hotel on a 3.482-acre
    property located in the “Light Industrial/Office Campus (Phased) Zoning District”
    (LIP zoning district) where a hotel use is permitted as of right. (ZHB’s June 26,
    2019 Decision, Finding of Fact “F.F.” Nos. 1, 2, and 7.) The northern and eastern
    sides of the property border Cook Drive and Emrick Boulevard, therefore requiring
    50-foot setbacks from the street right-of-ways. (Trial Court’s Feb. 14, 2020 Op. at
    2-3.) However, the western side borders the residential Madison Farms complex, 3
    which includes a 39-unit apartment structure with 14 vehicular garages. (F.F. No.
    3.) Consequently, the proximity of multiple residential units within 175 feet from
    the proposed hotel triggered a 150-foot setback requirement and the mandate for
    construction of an earth berm within the setback. (Id.)
    By way of relief, Applicant sought two variances under the Zoning
    Code. The first was a dimensional variance from Section 275.91(M)(4), requiring a
    150-foot setback from the lot lines of any dwelling, residential or agricultural district
    boundary, or municipal park. Applicant proposed a 74-foot setback, a variance of
    76 feet. The second was a complete waiver from Section 275.91(M)(5), mandating
    construction of an earth berm within the setback area. Applicant sought a waiver
    from the mandate because PPL Electric Utilities’ limitations preclude the
    construction of a berm. (F.F. No. 11.)
    2
    This Court may affirm a trial court’s decision on any grounds. Slusser v. Black Creek Twp.
    Zoning Hearing Bd., 
    124 A.3d 771
    , 772 n.1 (Pa. Cmwlth. 2015).
    3
    Madison Farms was approved pursuant to zoning amendments creating an overlay district
    within the LIP zoning district to allow for residential uses. (Trial Court’s Op. at 3 n.2.)
    2
    At the hearing before the ZHB, Applicant presented the testimony of
    numerous witnesses and nine exhibits.               Objector submitted no testimony or
    evidence. The ZHB voted unanimously to grant the variances. Without taking
    additional evidence, the trial court determined that Objector had standing to appeal
    but affirmed the decision to grant the variances. Objector’s appeal to this Court
    followed.4 As the issue of standing is determinative, we do not reach the issues
    raised by Objector pertaining to the legality of the variances.
    Other 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. Leoni v. Whitpain Twp. Zoning Hearing Bd., 
    709 A.2d 999
     (Pa. Cmwlth. 1998). Additionally, a party must demonstrate that he or she is an
    aggrieved person in order to have standing to appeal. Spahn v. Zoning Bd. of
    Adjustment, 
    977 A.2d 1132
    , 1149 (Pa. 2009). An adjoining neighbor who testifies
    in opposition to an application generally will have standing. 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. Cmwlth. 2008); In re Application of Brandywine
    Realty Tr., 
    857 A.2d 714
     (Pa. Cmwlth. 2004). However, more than mere proximity
    to the property is required to achieve aggrieved party status. To be aggrieved, a
    person must have a substantial, direct, and immediate interest in the matter. William
    Penn Parking Garage, Inc. v. City of Pittsburgh, 
    346 A.2d 269
    , 280 (Pa. 1975). A
    4
    Where the trial court takes no additional evidence, we are limited to determining whether
    the ZHB committed an error of law or made findings of fact which are not supported by substantial
    evidence. Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 
    180 A.3d 500
    , 504 (Pa. Cmwlth.
    2018). Substantial evidence is defined as relevant evidence that a reasonable mind might accept
    as adequate to support a conclusion. 
    Id.
     If the record contains substantial evidence, this Court is
    bound by the ZHB’s findings that result from the resolution of credibility and conflicting
    testimony. Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp., 
    25 A.3d 1260
    , 1266
    (Pa. Cmwlth. 2011).
    3
    party’s interest is substantial where a challenged action has a discernable adverse
    effect upon its interest beyond “the abstract interest of all citizens in having others
    comply with the law.” Id. at 282. A party’s interest is direct where there is a causal
    connection between the challenged action and the harm to its interest. Id. A party’s
    interest is immediate where that causal connection between the challenged action
    and the harm alleged is not remote or speculative. Id. at 283.
    In the present case, Objector’s participation at the ZHB hearing was
    limited to its attorney’s cross-examination of Applicant’s witnesses and legal
    argument in opposition to the variances. When the ZHB chair questioned counsel
    for Objector 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.” (May 29, 2019 Hearing, Notes of Testimony “N.T.” at 60;
    Reproduced Record “R.R.” at 91a.) Although counsel somewhat contradictorily
    indicated that he wished to submit some exhibits, the ZHB rejected his request to do
    so without a witness. (N.T. at 60-61; R.R. at 91a-92a.) Nonetheless, the ZHB
    accepted his counsel’s representation that his client owned the Courtyard Marriott at
    2220 Emrick Boulevard approximately two blocks away from the subject property
    and within the same industrial park. (N.T. at 12-13; R.R. at 44a-45a.) However,
    Objector was neither Applicant’s next-door neighbor nor within a radius to receive
    automatic notification of the application. (N.T. at 12-13; R.R. at 44a-45a.)
    In support of standing, counsel asserted that Objector’s proximity
    established an “implied interest in the current applicant’s intent to place a hotel just
    two blocks away from our hotel.”5 (N.T. at 13; R.R. at 45a.) A zoning appeal cannot
    be used as a method to deter free competition. In re: Farmland Indus., Inc. Appeal,
    5
    Applicant proposed a Fairfield Inn and Suites by Marriott. (N.T. at 43; R.R. at 74a.)
    4
    
    531 A.2d 79
    , 84 (Pa. Cmwlth. 1987). Nevertheless, a competitor is not precluded
    from establishing aggrievement.      However, 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, this Court will reject a
    competitor’s use of the zoning “process to impede the location of a competitor in its
    trading area.” 
    Id.
     Here, Objector 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. Notably, Objector’s property did not border the proposed
    site and Objector did not even establish that it would be able to view either the
    reduced setback or the absence of an earth berm from its property.
    Consequently, Objector failed to meet its burden to establish standing,
    so its substantive objections shall not be addressed. Accordingly, we affirm the trial
    court’s order.
    _____________________________________
    BONNIE BRIGANCE LEADBETTER,
    Senior Judge
    5
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    South Bethlehem Associates, LP        :
    :
    v.                       :   No. 321 C.D. 2020
    :
    Zoning Hearing Board of Bethlehem     :
    Township, Pennsylvania                :
    :
    v.                       :
    :
    Central PA Equities 30, LLC           :
    :
    Appeal of: South Bethlehem            :
    Associates, LP                        :
    ORDER
    AND NOW, this 29th day of January, 2021, the order of the Court of
    Common Pleas of Northampton County is hereby AFFIRMED.
    _____________________________________
    BONNIE BRIGANCE LEADBETTER,
    Senior Judge