Citation:

Boerner v. Hazle Township ZHB
845 A.2d 210 (Pa. Cmwlth. 2004)

Case Details:

This Court held that the objectors of a landowner’s request for a variance who failed to intervene until almost a month after the Trial Court ordered the granting of a variance was untimely; therefore, the objectors lack standing to appeal the Trial Court’s Order granting the variance.

The adjudication of this matter began when the landowner applied to the ZHB for a variance to build a commercial garage in a residential district. During the ZHB’s hearings, two objectors to the application were identified and testified that they desired to keep the residential characteristic of the neighbor the same. The ZHB denied the landowner’s request for the variance. The landowner appealed the ZHB’s decision to the Trial Court. The Trial Court reversed the ZHB’s decision and granted the variance to the landowner. Twenty-nine days later, the objectors simultaneously filed a petition to intervene in proceeding before the Trial Court and an appeal to the Commonwealth Court to contest the Trial Court’s Order. The Trial Court rejected the objectors’ petition to intervene. In the appeal to the Commonwealth Court, the Court remanded the case back to the Trial Court for an opinion regarding the rejection of the petition to intervene. The Trial Court rendered an opinion in support of its rejection of the petition to intervene. The objectors appealed the Trial Court’s rejection of the petition to intervene to the Commonwealth Court arguing that the Trial Court committed an abuse of discretion by rejecting their petition.

Pennsylvania Rule of Civil Procedure 2327 states that any time during the pendency of an action, a person is permitted to intervene if the person could have filed as an original party. However, the objectors petitioned to intervene after the Trial Court’s Order granting the variance; thus, the action was no longer pending. The objectors claimed that this did not matter because they were not afforded any notice of the landowner’s appeal to the Trial Court. The objectors claimed that they were required to be notified, as identified objectors from the ZHB hearing, of subsequent land use appeals under section 908(10) of the MPC. 53 P.S. § 10908(10). The Commonwealth Court disagreed with the objectors, noting that section 908(10) only requires objectors to be notified of the governing board’s final decision, not of a landowner’s subsequent appeals. Therefore, the Court held that the objectors’ petition to appeal was untimely, meaning that they lacked standing to appeal the Trial Court’s Order granting the variance.

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