Appellate Procedure

Friends of Lackawanna v. Dunmore Borough Zoning Hearing Bd.

A property owner has standing to object to a land use decision if he or she has a substantial, direct and immediate interest in the decision. An association has standing, “even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged.” In addition, a notice of land use appeal should not be dismissed for not being concise, pursuant to Section 1003-A(a) of the Pennsylvania Municipalities Planning Code, where its factual background section is voluminous but it still clearly and concisely sets forth the grounds on which the appeal is based.

Friends of Lackawanna v. Dunmore Borough Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 157 (May 7, 2018)

Date of Decision: 5/7/18

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SBA Towers IX, LLC v. Unity Twp. Zoning Hearing Bd

In certain circumstances, the holder of an option to lease is a “landowner” with standing to be an applicant for zoning approvals and relief. A person may intervene in a land use appeal at the court’s discretion where such person is “situated as to be adversely affected” by a decision of the court. Where it is claimed that an applicant did not make a good faith effort to find towers for collocation of antennas, comments by an objector’s attorney that other towers existed for collocation and that applicant did not analyze them are insufficient evidence that the applicant failed to act in good faith. For purposes of zoning approvals or relief where an ordinance requires that the applicant be licensed by the Federal Communications Commission (FCC), a licensed issued by the FCC for the party that will use the tower but that is not the applicant is not sufficient to prove the applicant is licensed by the FCC. Where an ordinance requires an applicant to demonstrate that a proposed tower or antenna comply with FCC standards governing human exposure to electromagnetic radiation, a conclusory letter from an employee associated with an applicant is insufficient evidence of compliance. Where the purpose of an application for a telecommunications tower and antennas is to fill a coverage gap, if expert testimony establishes that the antenna must be at a certain height to fill the coverage gap, evidence form objectors that a tower of the height required is unsafe from some other perspective (e.g., flight paths for planes) does not refute the evidence provided.

SBA Towers IX, LLC v. Unity Twp. Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 70

Date of Decision: 2/16/18

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Pennypacker v. Ferguson Twp.

The Pennsylvania Municipalities Planning Code (MPC) permits planned residential developments (PRD) as a means of “approving large developments which override[ ] traditional zoning controls and permit[ ] the introduction of flexibility into the design of larger developments." Appeals from final plan approval of a PRD where an appeal from tentative plan approval was not taken are generally prohibited. When appealing, appellant must state the grounds for appeal in the notice of appeal and unstated claims are waived.

Pennypacker v. Ferguson Twp., 167 A.3d 209 (Pa. Commw. Ct. 2017)

Date of Decision: 5/17/17

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Pendle Hill v. Zoning Hearing Bd. of Nether Providence Twp

Petitions to intervene after entry of a decree may be approved in extraordinary circumstances. In addition, “extraordinary circumstances” refers to an oversight or action on the part of the court or where the judicial process results in the losing party’s lack of knowledge of the entry of final judgment, so that the commencement of the running of the appeal time is not known to the party.

Pendle Hill v. Zoning Hearing Bd. of Nether Providence Twp., 134 A.3d 1187 (Pa. Commw. Ct. 2016)

Date of Decision: 3/10/16

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Thompson v. Zoning Hearing Bd. (2009)

Applicant waived its right to challenge an objector's standing on appeal where the applicant failed to challenge the objector's standing before the zoning hearing board.

Thompson v. Zoning Hearing Bd., 963 A.2d 622 (Pa. Commw. Ct. 2009).

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Ulsh v. Zoning Hearing Bd. (2011)

Doctrine of collateral estoppel applied in appeal of variance where the trial court previously ruled upon a similar variance application for the same property.

Ulsh v. Zoning Hearing Bd., 22 A.3d 244 (Pa. Commw. Ct. 2011).

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Bartkowski Inv. Group v. Bd. of Comm’rs of Marple Twp. (2011)

Renumbering of section numbers from time of advertisement to time of adoption does not violate due process rights. Failure to record an ordinance in the ordinance book within the statutorily required time period renders the ordinance ineffective, but not invalid.

Bartkowski Inv. Group v. Bd. of Comm’rs of Marple Twp., 18 A.3d 1259 (Pa. Commw. Ct. 2011).

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DeSantis v. Zoning Hearing Bd. (2012)

When reviewing a deemed approval, the trial court must not conduct appellate review; rather, de novo review is required and the trial court must make its own findings.

DeSantis v. Zoning Hearing Bd., 53 A.3d 959 (Pa. Commw. Ct. 2012)



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