Summary
zoning hearing boards also lack standing and are not proper party appellants because they are not injuriously affected
Summary of this case from East Stroudsburg v. Office of Open RecordsOpinion
Argued September 16, 1982
November 1, 1982.
Zoning — Standing of township to appeal — Standing of zoning board to appeal.
1. A zoning hearing board has no standing to appeal a final order of a court of common pleas reversing its denial of a variance, and the municipality itself has no standing to appeal when it did not intervene below. [486-7]
Argued September 16, 1982, before Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
Appeal, No. 173 C.D. 1981, from the Order of the Court of Common Pleas of Dauphin County in case of Ernest C. Dove v. Zoning Hearing Board of Derry Township, No. 1553 S. Term, 1980.
Application for variance with the Zoning Hearing Board of Derry Township. Application denied. Applicant appealed to the Court of Common Pleas of Dauphin County. Appeal sustained. Variance ordered granted. MORGAN, J. Zoning Board appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed.
Philip D. Freedman, for appellant.
No appearance for appellee.
The Zoning Hearing Board of Derry Township here seeks to overturn an order of the Court of Common Pleas of Dauphin County, reversing a decision of that board, which had denied landowner Ernest Dove's request for a variance.
The long-settled rule is that a zoning hearing board has no standing to appeal a final order of a court of common pleas. Lansdowne Borough Board of Adjustment's Appeal, 313 Pa. 523, 170 A. 867 (1934). Here the township itself could have intervened in the common pleas court under Section 1009 of the Pennsylvania Municipalities Planning Code in order to have assured standing as a party to appeal. Moreover, our holding in Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa. Commw. 296, 427 A.2d 776 (1981), mandating the municipality's participation below as a prerequisite to an appeal by it, would have presented no barrier here because we gave that holding only prospective application. However, at no point in these proceedings has the township sought to intervene or otherwise to become the appellant.
Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 11009.
In Gilbert, we held that a municipality will have standing to bring a zoning appeal to this court only if it properly becomes a party before the lower court, as an appellant or intervenor. However, we made Gilbert prospective, to take effect only as to cases in which the zoning hearing board's decision was issued after thirty days following Gilbert's filing date of April 7, 1981. See National Development Corp. v. Township of Harrison, 64 Pa. Commw. 54, 438 A.2d 1053 (1982). Here, the board's decision was made on February 20, 1980.
As the Supreme Court indicated in Lansdowne, the zoning hearing board can no more take an appeal to an appellate court than a master could. And, as Horn v. Township of Hilltown, 461 Pa. 745, 337 A.2d 858 (1975) established, the interests of the board and the township must be treated separately in zoning cases. Hence, without a lawful party appellant, this proceeding has no jurisdictional existence before us, and we must dismiss it sua sponte. See National Development Corporation v. Township of Harrison, 64 Pa. Commw. 54, 438 A.2d 1053 (1982).
ORDER
NOW, November 1, 1982, the appeal of the Zoning Hearing Board of Derry Township from the order of the Court of Common Pleas of Dauphin County, No. 1553 S Term 1980, is hereby quashed.