Raise It or Waive It: Standing Can Play a Critical Role in Zoning Hearings

The Legal Intelligencer

(by Krista-Ann M. Staley and Amie L. Courtney)

While the setting may be significantly less formal—think a public works garage or community center gymnasium rather than a marble-columned historic landmark—standing requirements apply in the context of a zoning hearing as they do in a more formal courtroom setting. Therefore, whether representing a party seeking a zoning approval, a zoning hearing board or governing body considering a zoning application, or an objector, it is important to understand how to navigate the issue of standing during the initial proceeding.

The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101, et seq., (MPC), the state’s zoning enabling legislation, clearly provides a “landowner” with standing to file a zoning application or pursue a zoning appeal. The statute broadly defines “landowner” as including the owner of the subject property, the holder of an option to purchase the property, an authorized lessee, or “other person having a proprietary interest in land”. However, Pennsylvania law does not provide a bright-line standard to determine whether a party has standing to object in a zoning proceeding. This is an important determination because a party with standing to object may cross-examine an applicant’s witnesses and present its own witnesses and evidence. A party with standing may also appeal the final determination. As a result, participation by an objector can significantly impact the path and outcome of a zoning case.

Pennsylvania case law provides a general framework to determine whether an objector has procedural and substantive standing, both of which are required to obtain “party” status in a zoning hearing. To have substantive standing, an objector must be “aggrieved” by having a direct interest in the subject of the proceeding that would be adversely affected by the action. This requires more than a general interest in the enforcement of zoning regulations; the objector must be able to demonstrate potential injuries or concerns that are greater than those of the general public. “Close proximity” to a proposed project may confer substantive standing, but what constitutes “close proximity” will depend upon the project; a resident a few blocks from a proposed sign may not be aggrieved by the project but a resident a half a mile from a power plant may.

In order to have procedural standing, an objector must participate in the zoning hearing. For a variance application, a special exception application, or an appeal from certain administrative decisions, this proceeding will be before the municipality’s zoning hearing board. For a conditional use application, this proceeding will be before the municipality’s elected governing body. The MPC requires a person affected by municipal action to make a “timely appearance of record.” Objectors must submit their concerns about the proposed action to the zoning hearing board or governing body considering the action. Given the common informality of these proceedings, Pennsylvania courts have had several opportunities to contend with what constitutes an “appearance” before the board. They have found, for example, that one cannot establish procedural standing without appearing before the board or submitting an objection, as in Leoni v. Whitpain Township Zoning Hearing Board, 709 A.2d 999 (Pa. Commw. Ct. 1998), but one can establish procedural standing by submitting to the deciding body a letter raising concerns, as in Orie v. Zoning Hearing Board of Borough of Beaver, 767 A.2d 623 (Commw. Ct. 2001).

An organization may also have standing to participate in a zoning proceeding if it can show it has either standing in its own right (i.e., it meets all of the procedural and substantive standing requirements) or derivate standing (i.e., at least one of its members is suffering an immediate or potential injury).

Whether challenging a party’s standing to file a zoning application or a party’s standing to participate as an objector, any claim that an individual or organization lacks standing must be asserted promptly. Failure to object to standing at the local level will waive the claim. There are no rules or regulations regarding the consideration of standing at the local level, so an objection to standing may result in a wide range of responses from the local body considering the zoning action. For example, some boards will simply note the objection and allow the proceedings to move forward with participation by all interested participants. Other boards may hold a mini-hearing on standing, including testimony and cross-examination, and make a ruling before proceeding to the merits of the case. An early decision on standing can have a significant impact on the path of the case, given the participation and appeal rights afforded to parties with standing.

The Commonwealth Court recently added Friends of Lackawanna v. Dunmore Zoning Hearing Board, 186 A.3d 525 (Pa. Commw. Ct. 2018), to its body of law on substantive standing. Friends of Lackawanna originated with an appeal from the borough zoning officer’s administrative decision that a proposed expansion of a landfill by Keystone Sanitary Landfill (Keystone) would comply with the borough’s zoning ordinance. The proposed expansion would add 165 feet to the height of the landfill and 46 years to its life. According to the zoning officer, the building height requirements applied to structures with a roof supported by walls or columns, and not to the landfill.

Various property owners (individual objectors) and a nonprofit organization, Friends of Lackawanna (FOL), (collectively, the objectors) appealed the opinion to the borough’s zoning hearing board (ZHB). Before proceeding to the merits of the case, the ZHB allowed testimony from the objectors regarding standing. Individual objectors testified that they lived between a quarter-mile and a half-mile from the landfill. They also testified to odors and dust coming from the existing landfill. One objector testified to seagull droppings on his property caused by the landfill. FOL presented testimony that an individual objector was a member of the organization and that it was involved in outreach and community involvement related to the proposed landfill.

The ZHB found that the objectors did not have standing to appeal the zoning officer’s opinion and the objectors appealed to the trial court. The trial court upheld the ZHB’s decision regarding standing. It determined that the individual objectors did not have a direct, immediate and substantial interest in the landfill expansion. It also determined that FOL did not have any interest other than a general interest shared by the public and lacked members who had standing.

On appeal to the Commonwealth Court, the objectors argued the individual objectors had standing because they lived in close proximity to the landfill and their properties were impacted by it. They argued that FOL had standing in its own right and as a representative of the individual objectors. The court reiterated the test for substantive standing, stating that a person must have a “substantial, direct and immediate interest” in the action being appealed that is different that an abstract interested held by all citizens. In Friends of Lackawanna, the court found that all the families lived in close proximity to the landfill. The court also found that the individual objectors complained of additional injuries that were different from concerns of the general public, including odors from the landfill, bird droppings and dust that affected their use and enjoyment of their properties. Finally, the court found that FOL had derivative standing on behalf of its members because individual objectors, who were FOL members, had standing.

Even though zoning proceedings can be untidy and informal, it is critical for anyone intending to participate, as either an applicant or objector, to be prepared to raise and defend a potential objection to standing. Failure to do so can result in significant delays and, in extreme circumstances, an avoidable adverse decision on the merits. Krista-Ann M. Staley is a shareholder and Amie L. Courtney an associate in the public sector services and energy and natural resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. Staley’s practice includes a variety of local regulatory matters, with a focus on land use. Courtney focuses her practice on zoning, subdivision, land development, and code enforcement matters. 

*Reprinted with permission from the 8/23/18 issue of The Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.

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