Opinion
No. 2353 C.D. 2013
12-15-2014
Baron Gemmer, Liz Otwell, Stephen Falk, Lisa Warner, Shannon Warner, Lesley Bosniak v. Radnor Township and Norcini Builders, Inc. Appeal of: James D. Schneller
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
James D. Schneller appeals, pro se, an order of the Court of Common Pleas of Delaware County (trial court) denying his petition to intervene in the above-captioned matter. Schneller contends that the trial court abused its discretion in holding that he lacked a sufficient legal interest to intervene. We affirm and remand for consideration of the request of Norcini Builders, Inc. for an award of counsel fees.
By way of background, in 2007 Norcini filed an application with the Zoning Hearing Board of Radnor Township (Zoning Board) "seeking a determination by the Board that the private street Owens Lane in the Township constitutes a 'street' under Section 280-4 of the Township of Radnor Zoning Ordinance." Schneller v. Zoning Hearing Board of Radnor Township, (Pa. Cmwlth., No. 1757 C.D. 2008, filed June 1, 2009). The Zoning Board held public hearings on the matter and ultimately concluded that Owens Lane was a street within the meaning of the Township's zoning ordinance. On December 26, 2007, Schneller appealed the Zoning Board's decision to the trial court. Norcini intervened and moved to quash Schneller's appeal for lack of standing. The trial court granted Norcini's motion and quashed Schneller's appeal. Schneller appealed, and this Court affirmed the trial court's decision. Id. The Pennsylvania Supreme Court denied Schneller's petition for allowance of appeal of our decision. Schneller v. Zoning Hearing Board of Radnor Township, 2 A.3d 472 (Pa. 2010).
With the Zoning Board's decision, Norcini applied to the Township to create a five-lot subdivision. Norcini's subdivision and development plan included a proposal to demolish two apartment buildings and replace them with five single-family houses. The Township approved Norcini's subdivision plan and passed Resolution 2008-23, thereby waiving Norcini's obligation to comply with Sections 255-27.I(6), 255-27.I(7), and 255-47C of the Township's Subdivision and Land Development Ordinance (SALDO). Baron Gemmer, Liz Otwell, Stephen Falk, Lisa Warner, Shannon Warner and Lesley Bosniak (Objectors) appealed the Township's approval of Norcini's subdivision plan, arguing that Resolution 2008-23 violated numerous SALDO provisions not specifically waived by the Resolution. Schneller petitioned to intervene in Objectors' land use appeal.
Section 255-27.I(6) of the SALDO states that "No common driveways shall be permitted between two (2) or more single-family dwellings." Certified Record (C.R.___), Resolution 2008-23.
Section 255-27.I(7) of the SALDO states that "No common driveway shall provide access to more than three (3) lots or three (3) single-family dwellings." C.R. Resolution 2008-23.
Section 255-47C of the SALDO states that "All streets shall be granted to: 'Along the existing street on which a subdivision or land development abuts (hereinafter called a "boundary street"), improvements shall be made to the street. The improvements to the boundary street shall be determined by the width of the required cartway and built to the specifications established by the township.'" C.R. Resolution 2008-23.
Schneller seeks to intervene to prevent Norcini from demolishing the buildings in order to preserve "the appearance of the block or 'viewshed.'" Schneller's Brief at 28. According to Schneller,
the entire block [where the proposed development sits] is traditional house-in-center lot configuration, with a substantially uniform setback, and the proposed development would abruptly interfere with, besmirch, and permanently disfigure the plainly visible and authentic historicity of the block.Id. Schneller claims that as an "auto-less bicyclist and jogger, land use hobbyist and lifelong landscaper, gardener, and studier of architecture," Schneller will be harmed by Norcini's development. Id. at 36-37. Specifically, Schneller fears that
the planned structures would have a negative effect on traffic, auto and pedestrian safety, privacy, noise, parking, the environment, and the aesthetic appearance, convenience, and natural beauty of the block, and morale of the citizenry and classes thereof, and faith and trust in the government.Id. at 32. Schneller contends that the development will cause "detriment to property values and quality of life, including negative effects on travel and walk, lessening of safety, reduced comfort and greater risk of environmental harms, and visual unpleasantness." Id.
On February 9, 2009, the trial court denied Schneller's petition to intervene in Objectors' appeal. Schneller moved for reconsideration, which the trial court denied on May 23, 2011.
Objectors settled their land use appeal with the Township, and the trial court dismissed their action on June 13, 2013. Dissatisfied with the settlement between the Township and Objectors, Schneller appealed the trial court's denial of his 2009 petition to intervene in Objectors' land use appeal on July 15, 2013. Schneller also filed a "Petition to Docket and Transmit Appeal" on September 4, 2013, which the trial court denied on October 1, 2013. Schneller now asks this Court to reopen Objectors' land use appeal notwithstanding its settlement.
The trial court and Norcini state that Schneller filed his notice of appeal on November 27, 2013. Schneller filed his notice of appeal in this Court on July 15, 2013, and this Court forwarded Schneller's notice of appeal to the trial court. This Court's chief clerk sent a letter with Schneller's notice of appeal to the trial court explaining that:
The enclosed notice of appeal was received by this court July 15, 2013. This appears to be James D. Schneller's attempt to appeal from various orders of the Court of Common Pleas of Delaware County in the above-captioned matter.Reproduced Record at 117a (R.R. ___). The trial court did not act on this appeal for approximately five months. Schneller, unsatisfied with the lack of activity, re-filed his notice of appeal in the trial court on November 27, 2013. His November 27, 2013, notice of appeal states:
This appeal was originally filed with the Commonwealth Court of Pennsylvania on Monday July 15, 2013 ... as evidenced in the copy of letter from the Chief Clerk of the Commonwealth Court to the Office of Judicial Support dated July 17, 2013 attached hereto.
On appeal, Schneller contends that the trial court abused its discretion in denying his petition to intervene. Specifically, Schneller argues that the trial court erred in concluding that he did not satisfy the requirements for intervention set forth in the Pennsylvania Rules of Civil Procedure. Schneller also contends that the trial court erred in determining that Schneller's interests were adequately represented by Objectors. Norcini counters that the trial court did not err in denying Schneller's petition to intervene. Norcini also asks this Court to assess counsel fees and delay damages against Schneller because his appeal is frivolous, dilatory, obdurate and vexatious.
Our scope of review when considering the denial of a petition to intervene is limited to determining whether the trial court committed an error of law or abused its discretion. Realen Valley Forge Greenes Associates v. Upper Merion Township Zoning Hearing Board, 941 A.2d 739, 743 n.6 (Pa. Cmwlth. 2008).
Norcini contends, incorrectly, that Schneller's appeal is untimely because it was filed on November 27, 2013, which was more than 30 days past the deadline under the appellate rules. Because the trial court closed Objectors' matter on June 13, 2013, Schneller had 30 days from that date to appeal the court's interlocutory order denying intervention. PA. R.A.P. 903(a); Atticks v. Lancaster Township Zoning Hearing Board, 915 A.2d 713, 716-17 (Pa. Cmwlth. 2007). Thirty days from June 13, 2013, was July 13, 2013, a Saturday. Thus, the deadline for Schneller's appeal was extended to July 15, 2013, which is the day Schneller filed his notice of appeal in this Court, which transferred it to the trial court. Therefore, Schneller's appeal is timely.
Rule 2327 of the Pennsylvania Rules of Civil Procedure states that, at any time during the pendency of an action, a person who is not a party shall be permitted to intervene if
(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; orPA. R.C.P. No. 2327. Even if a party fits into one of the four classes listed in Rule 2327, however, he may be unable to intervene if
(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.
(1) the claim or defense of the petitioner is not in subordination to and in recognition of the propriety of the action; orPA. R.C.P. No. 2329. This Court has previously explained:
(2) the interest of the petitioner is already adequately represented; or
(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.
Considering Rules 2327 and 2329 together, the effect of Rule 2329 is that if the petitioner is a person within one of the classes described in Rule 2327, the allowance of intervention is mandatory, not discretionary, unless one of the grounds for refusal under Rule 2329 is present. Equally, if the petitioner does not show himself to be within one of the four classes described in Rule 2327, intervention must be denied, irrespective of whether any of the grounds for refusal in Rule 2329 exist.Larock v. Sugarloaf Township Zoning Hearing Board, 740 A.2d 308, 313 (Pa. Cmwlth. 1999). Because the issue of whether Schneller's interests were adequately represented is ancillary to determining whether Schneller fit within one of the categories described in Rule 2327, we first consider whether the trial court erred in concluding that Schneller did not qualify as a member of either the third or fourth class of intervenors in PA. R.C.P. No. 2327.
In this case, Schneller is attempting to intervene in an action to enforce certain SALDO provisions, not an appeal of a zoning hearing board decision. However, because the rules governing intervention in zoning appeals are identical to the rules governing intervention in SALDO contests, we may rely on cases examining the standing of intervenors in zoning decisions. Robert S. Ryan, PENNSYLVANIA ZONING LAW AND PRACTICE, §9.6.1 (1981).
The trial court concluded that Schneller failed to satisfy the criteria for any of the four classes of intervenors in Rule 2327. On appeal, Schneller contends only that he qualifies for intervention under Rule 2327(3) and (4). Accordingly, we will not consider whether Schneller qualifies for intervention under Rule 2327(1) or (2).
The third class of parties entitled to intervene under Rule 2327 are those that "could have joined as an original party in the action or could have been joined therein." PA. R.C.P. No. 2327(3). This class requires that the proposed intervenor have the same standing as an original party. Realen Valley Forge Greenes Associates v. Upper Merion Township Zoning Hearing Board, 941 A.2d 739, 743 (Pa. Cmwlth. 2008). In a zoning matter, a party's standing is established by showing that he has been aggrieved by the grant of zoning relief. Society Created to Reduce Urban Blight (SCRUB) v. Zoning Hearing Board of Adjustment of the City of Philadelphia, 951 A.2d 398, 402 (Pa. Cmwlth. 2008). To be aggrieved, the putative litigant must have "an adverse, direct, immediate and substantial interest in a decision, as opposed to a remote and speculative interest." Id. "A substantial interest is one that surpasses the common interest of all citizens[.]" Id.
Schneller makes the following argument in support of his standing:
[Schneller] has interests in the subject matter that would be adversely affected by the action now challenged, and is aggrieved in ways not common to all citizens. [Schneller] has lived within one mile of the proposed site for 42 years and traverses the location at least 3 times a week, including on shopping runs. [Schneller] walks, jogs, and bicycles as a daily act, and as his principle means of transport, which regularly traverses the block in question. Therefore [Schneller] has much greater likelihood of being inflicted with the woes of the
project. "Open air" travel is much more damageable by infringements on air quality, visual and noise comfort, eyesores, and most such variables, and so like many of these issues, is distinguishable from the citizenry at large.Schneller's Brief at 31-32. We conclude that these asserted interests are not sufficient to confer standing.
Spahn v. Zoning Board of Adjustment, 922 A.2d 24 (Pa. Cmwlth. 2007), provides instructive precedent. In that case, the person challenging the land use decision lived approximately one and a half blocks away from the proposed development. He walked by the property daily. At the hearing, the challenger stated that he opposed "this particular project because it undermines the ability of the City of Philadelphia to oversee orderly development of the City...." Id. at 31. This Court concluded that the challenger's interest was the interest common to all citizens. Id.
Schneller's standing argument is virtually identical to the argument we rejected in Spahn. Being offended by the appearance of a development where one walks or rides his bicycle is not a sufficiently direct interest to establish standing. Schneller lives over a mile from Norcini's project. The objector in Spahn lived much closer to the development he opposed. Opposing change to the appearance of the neighborhood where one walks may be understandable, but that is not an interest sufficient to confer standing. The trial court did not err when it concluded that Schneller did not qualify for intervention under PA. R.C.P. No. 2327(3).
The fourth class of persons permitted to intervene by Rule 2327 are those who have a legal interest that may be affected by the disposition of the case. PA. R.C.P. No. 2327(4). This Court has previously explained that "owners of property in the immediate vicinity of property involved in zoning litigation have the requisite interest to fit under the definition of PA. R.C.P. No. 2327(4), and such property owners have grounds to intervene in the litigation." Township of Radnor v. Radnor Recreational, LLC, 859 A.2d 1, 5 (Pa. Cmwlth. 2004).
When considering Schneller's appeal of the Zoning Board's grant of zoning relief, this Court previously explained:
[T]he trial court determined that Schneller did not own any affected properties and that he did not have any interest that is directly threatened by the proposed development. More specifically, the trial court found:
Schneller v. Zoning Hearing Board of Radnor Township, (Pa. Cmwlth., No. 1757 C.D. 2008, filed June 1, 2009) at 8. Schneller has not argued or presented evidence to suggest his situation has changed. Therefore, applying the same facts to the same legal standard, we again conclude that the trial court did not err in its application of Rule 2327(4).[T]he record established that [Schneller] does not own any property in the immediate vicinity of the property which was the subject of the zoning proceeding from which he appealed. Instead, [Schneller] resides in a rental property located approximately one (1) mile from the subject property. While [Schneller] testified that he jogs and rides his bicycle in the area of the subject property, he was wholly unable to offer any other basis that would qualify him as a party aggrieved by the Board's action.
In summary, we agree with the trial court that Schneller was not entitled to intervene in Objectors' land use appeal under either PA. R.C.P. No. 2327 (3) or (4). Accordingly, we affirm the trial court's order denying Schneller's petition to intervene.
In light of the above analysis, we need not consider Schneller's argument that his interests were not adequately represented by Objectors.
We next consider Norcini's request for counsel fees and delay damages under Pennsylvania Rule of Appellate Procedure 2744. Rule 2744 states:
Rule 2751 of the Pennsylvania Rules of Appellate Procedure sets forth the preferred procedure for requesting the costs and fees authorized by PA. R.A.P. 2744. The rule states that "[a]n application for further costs and damages must be made before the record is remanded, unless the appellate court, for cause shown, shall otherwise direct. Such an application must set forth specifically the reasons why it should be granted, and shall be accompanied by the opinion of the court and the briefs used therein." PA. R.A.P. 2751. Nevertheless, "this [C]ourt has previously treated a request for counsel fees based on frivolity as if it were an application when ... it is made as part of the requesting party's appellate brief on the merits." Canal Side Care Manor, LLC v. Pennsylvania Human Relations Commission, 30 A.3d 568, 576 n.12 (Pa. Cmwlth. 2011). Therefore, we will treat Norcini's request for costs in its brief as an application for further costs and damages under Rule 2751.
In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per annum in addition to legal interest,
PA. R.A.P. 2744. An appeal is frivolous if "the appeal lacks any basis in law or in fact." Gargano v. Terminix International Co., L.P., 784 A.2d 188, 195 (Pa. Super. 2001).
if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule.
Here, the trial court determined in August 2008 that Schneller lacked standing to appeal the Zoning Board's order granting zoning relief to Norcini. That decision was affirmed by this Court, and the Pennsylvania Supreme Court disallowed Schneller's subsequent appeal. Notwithstanding these rulings, Schneller attempted to intervene in Objectors' related land use appeal. In doing so, Schneller argued that because he jogs, bicycles, and rents an apartment in the vicinity of the site, he has standing. These same arguments were rejected by the trial court and this Court when Schneller appealed Norcini's zoning relief. Nevertheless, Schneller offers no explanation as to how these arguments, which lacked merit in the determination on whether Owens Lane is a street, confer standing for purposes of Norcini's subdivision and development plan. The rules governing intervention during both phases of Norcini's project are identical. See n.7, supra.
We agree that Schneller's appeal lacks merit. Accordingly, we remand this matter to the trial court for the limited purpose of determining whether counsel fees and delay damages should be awarded to Norcini under PA. R.A.P. 2744.
On September 11, 2014, Schneller filed an "Application for Stay or Injunction." Our disposition of this matter renders Schneller's application moot. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 15th day of December, 2014, the order of the Court of Common Pleas of Delaware County, dated February 9, 2009, is AFFIRMED and the matter is REMANDED for the limited purpose of determining counsel fees and delay damages to which Norcini Builders, Inc., is entitled under PA. R.A.P. 2744. Appellant's Application for Stay or Injunction is DENIED as moot.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge
Id. at 113a. The trial court treated November 27, 2013, as the date Schneller filed his appeal, despite the mandate of Rule 905(a)(4) that when an appellant mistakenly files a notice of appeal in this Court, "the notice of appeal shall be deemed filed in the trial court on the date originally filed" in this Court. PA. R.A.P. 905(a)(4). Thus, the trial court erred when it treated November 27, 2013, as the date Schneller filed his appeal. Such error was harmless, however.