M.B. Selig v. ZHB of North Whitehall Twp. and R. and S. Sloyer

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael B. Selig, :
Appellant :
:
v. :
:
The Zoning Hearing Board of :
North Whitehall Township :
and Raymond and Sheila : No. 180 C.D. 2014
Sloyer : Submitted: June 13, 2014
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McGINLEY FILED: July 22, 2014
Michael B. Selig (Selig) appeals from the Order of the Court of
Common Pleas of Lehigh County (common pleas court) which dismissed his land
use appeal for lack of standing.
On June 7, 2012, Selig filed an application to the Zoning Hearing
Board (ZHB) which requested a special exception and variance to permit the
development of an airport/heliport on a parcel located at 5471 Route 309,
Schnecksville, Pennsylvania (Property). The Property was owned by Aerotierra,
LLC, a holding company organized for the purpose of owning the Property. The
helicopter was owned by Aerotierra, LLC, and formerly owned by DR.
Helicopters, LLC.
Selig filed his zoning application under his own name. He
subsequently amended his application before the ZHB to name Aerotierra, LLC, as
the owner of the Property and Selig as the “representative” of Aerotierra, LLC.1
The ZHB conducted nine hearings. On February 13, 2013, the ZHB
denied Selig’s zoning relief because a heliport was not a permitted use on the
Property, and Selig’s proposed use did not meet the requirements for a special
exception to use the Property as an airport.
On February 27, 2013, Selig personally appealed the ZHB’s Decision
to the common pleas court.
On October 11, 2013, the common pleas court denied Selig’s zoning
appeal based on its finding that Selig lacked standing to file the appeal because the
Property was owned by Aerotierra, LLC.
Selig retained counsel and filed a Petition for Reargument on the issue
of standing which the common pleas court granted. On January 8, 2014, after
reargument, the common pleas court again denied Selig’s appeal for lack of
standing. The common pleas court reasoned:
The appeal must be denied on procedural grounds for
Appellant’s [Selig] lack of standing. Mr. Selig
individually does not own the property at issue in this
matter; he only owns the company which owns the
property. While Mr. Selig did file the application to the
Zoning Board in his name he later amended the applicant
1
Selig was sole owner and member of Aerotierra, LLC, having a 100% interest in the
company.
2
to be Aerotierra, LLC, which is the sole owner of the
property at issue in this case. As Aerotierra, LLC was
the applicant it is the proper party to bring this appeal.
Mr. Selig cannot bring an appeal as himself individually
where he was not a party in the underlying Zoning Board
Hearing. Therefore, Mr. Selig lacks standing and this
appeal is denied. In addition, Mr. Selig would not now
be able to amend this appeal so that Aerotierra, LLC is
the Appellant because the time limit for an appeal has
run. Bradley v. Zoning Hearing Board of the Borough of
New Milford, 63 A.2d 488 (Pa. Cmwlth. 2005). Finally,
even if allowed to amend beyond the time limit, Mr.
Selig would not be allowed to argue this appeal on behalf
of Aerotierra, LLC because he is not an attorney. The
fact that he is the sole owner of Aerotierra, LLC does not
circumvent the rule that a corporation cannot proceed pro
se or with a non-attorney representing them (sic).
Walacavage v. Excell 2000, Inc., 480 A.2d 281, 284 (Pa.
Super. 1984). This clearly applies to all entities who are
not natural persons based on the reason in Walacavage,
‘a corporation can do no act except through its agent and
that such agents representing the corporation in Court
must be attorneys at law who have been admitted to
practice, are officers of the court and subject to its
control,’ and ‘the rule holds true even if a corporation
only has one shareholder.’ Id. Citing MacNeil v. Hearst
Corp., 160 F. Supp. 157 (D. Del. 1958); Shamey v.
Hickey, 433 A.2d 1111 (D.C. App. 1981).
Common Pleas Court Order, October 10, 2013, at 1, n. 1.
On February 5, 2014, Selig filed a pro se Notice of Appeal from the
January 8, 2014, order.
3
On appeal2, Selig argues that the common pleas court erred when it
dismissed his appeal for lack of standing.3
This Court has thoroughly reviewed the record, the briefs and cases
cited therein and the common pleas court’s opinion dated October 10, 2013. The
common pleas court’s opinion is thorough and explained in detail the reasons for
the dismissal of Selig’s land use appeal. The common pleas court ably disposed of
this issue and applied sound legal reasoning. Accordingly, this Court adopts in full
the Opinion of the common pleas court and affirms on the basis of the Opinion at
Michael B. Selig v. Zoning Hearing Board of North Whitehall Township and
Raymond Sloyer and Sheila Sloyer, Court of Common Pleas of Lehigh County,
No. 2013-C-0643, (filed October 10, 2013).
____________________________
BERNARD L. McGINLEY, Judge
2
This Court’s scope of review is whether the common pleas court committed an abuse of
discretion or error of law. Larock v. Sugarloaf Township Zoning Hearing Board, 740 A.2d 308
(Pa. Cmwlth. 1999).
3
Selig raises three other issues which this Court will not address because they do not
relate to the common pleas court’s dismissal of his land use appeal for lack of standing: (1) did
multiple breaches of Due Process occur throughout this case? (2) Did Mr. Smith engage in acts
of Fraudulent Concealment, Malicious and Frivolous Prosecution? And (3) Was the intervenors’
standing questionable from the onset, to FURTHER unduly DELAY, complicate, subterfuge the
facts as to pervert the course of justice? Selig’s Brief at 10 (Emphasis in original).
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael B. Selig, :
Appellant :
:
v. :
:
The Zoning Hearing Board of :
North Whitehall Township :
And Raymond and Sheila :
Sloyer : No. 180 C.D. 2014
ORDER
AND NOW, this 22nd day of July, 2014, the order of the Court of
Common Pleas of Lehigh County is hereby AFFIRMED. Intervenors’ Motion to
Quash is denied.
____________________________
BERNARD L. McGINLEY, Judge