McLoughlin v. ZHB of Newtown Township, 953 A.2d 855 (Pa. Cmwlth. 2008).
A party not directly involved in a land use action may intervene only as set forth in the Pennsylvania Rules of Civil Procedure.
Landowners purchased two lots in a residential district. Their residence was located on one lot, and the other lot was vacant. The vacant lot failed to satisfy the ordinance requirements for total square feet, contiguous buildable square feet and frontage. Landowners appealed to the Zoning Hearing Board (the “ZHB”) and requested a variance.
Neighbors raised the question to the ZHB of whether the lots had merged. The ZHB concluded that the Landowners were not entitled to a variance. The Landowners appealed to the trial court and the Neighbors filed a notice of intervention. The trial court reversed the ZHB’s decision and concluded the Landowners were entitled to a variance and also concluded that the Neighbors failed to file their notice in accordance with the requirements set forth in the MPC. The Neighbors filed a notice of appeal to the Commonwealth Court and the trial court directed them to file a statement of matters complained of on appeal. The Neighbors claimed that the trial court erred in concluding that they failed to follow procedure in seeking to intervene.
The trial court issued an opinion in support of its order and referred to Section 1004-A of the MPC which provides that the municipality, any owner or tenant of property directly involved in the action may intervene as of course by filing a notice of intervention. Any other party must comply with the Pennsylvania Rules of Civil Procedure regarding intervention. The Rules of Civil Procedure require that an application for leave to intervene shall be made by a petition. The Neighbors never filed a petition. The Neighbors, as adjacent landowners, did not have a right as a matter of course to intervene by a notice of intervention under the MPC. The Neighbors then argued that the only difference is that they captioned their notice as a notice rather than as a petition. However, a petition is a pleading which makes the court and other parties aware that they may respond. A notice does not accomplish that.
Next, the Neighbors argued that they requested to intervene at a hearing before the trial court by orally arguing to the court. However, the Commonwealth Court found that the only way an oral colloquy would constitute an application to intervene would be if the potential intervenor actually moved the court to grant intervenor status. The Neighbors never presented a motion to intervene either orally or in writing. Further, the Neighbors had time to file a petition. Therefore, the Commonwealth Court affirmed the trial court’s finding that the Neighbors lacked standing to intervene.
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