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If a third party is permitted to participate, as a party, in an action before a Zoning Hearing Board, that party has status to appeal any adverse decision regardless of whether he has an adverse, direct, immediate or substantial interest in the decision as generally required to grant standing under Pennsylvania law.
Thompson v. Zoning Hearing Board of Horsham Township, 963 A.2d 622 (Pa. Commw. 2009).
Landowner Labrepco Ventures, L.P. (“Landowner”) applied to the Horsham Township Zoning Hearing Board (“ZHB”) for a variance to allow it to construct an office building in an area that prohibited office and warehouse uses, as well as a variance to allow for a 43 feet buffer around the property where the Ordinance required a 50 feet buffer. A third party individual, Edwin Thompson (“Thompson”) sought party status to participate in the proceedings before the ZHB which was granted without requiring Thompson to present any evidence that he would be directly harmed by an adverse decision by the ZHB. Further, Thompson failed to present any evidence before the ZHB to challenge Landowner’s evidence submitted in support of the request for variance – expert testimony that the proposed use and change in buffer would not have any deleterious effects on the surrounding area. The ZHB granted the requests for variance, and Thompson appealed. The Landowner sought to quash the appeal, arguing that Thompson lacked standing to appeal, as he failed to present evidence that he had an adverse, direct, immediate or substantial interest in the decision as required to appeal under Pennsylvania law. The Trial Court declined to quash the appeal, finding that because the Landowner did not object to Thompson’s intervention before the ZHB, it waived any right to challenge his standing or the appeal. Landowner appealed and the Commonwealth Court granted the petition to determine whether Thompson had standing to appeal the decision.
The Commonwealth Court, citing one of its prior decisions, upheld the decision of the Trial Court. The general rule in Pennsylvania is that in order to challenge a land use decision, the party must have standing which may be established only by evidence that he has an adverse, direct, immediate and substantial interest in a decision. There is an exception to this general rule, however, when a party has been permitted to participate in earlier proceedings. Specifically, the Court found that when a resident appears and participates as a party before a Zoning Hearing Board without objection by the Landowner, the party necessarily and automatically is aggrieved by any adverse decision and has standing to appeal that decision. Further, by failing to challenge Thompson’s request to participate as a party before the ZHB, the Landowner waived its ability to raise standing on appeal. The Commonwealth Court therefore remanded the case to the Trial Court to consider the objections set forth in Thompson’s appeal.
Opinion Date: January 12, 2009
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