Neither Presence Nor Participation at Township Proceedings Required in Order to Appeal Subdivision/ Land Development Approval in Pennsylvania
In what appears to be a case of first impression in Pennsylvania, the Commonwealth Court of Pennsylvania found that a party has standing to appeal a township’s grant of subdivision/land development approval even if that party was not present at, or did not participate in, the township proceedings on the application. This decision, filed on October 28, 2010, is in sharp contrast to established Pennsylvania case law concerning the standing of a party to appeal the decision of the Zoning Hearing Board, where that party’s appearance or objection at the Zoning Hearing Board level is a prerequisite to its ability to appeal. See Leoni v. Whitpain Township Zoning Hearing Board.
In the matter of John J. Miravich and Patricia J. Miravich, et al. v. Township of Exeter, Berks County, Pennsylvania, No. 2133 C.D. 2009, the Commonwealth Court drew a distinction between land development approval applications and zoning hearing board applications with respect to an appellant’s standing to appeal. In Miravich, the developer filed an application for preliminary subdivision and land development approval. That application was considered by the Township’s Planning Commission and by its Board of Supervisors, and ultimately approved by the Board of Supervisors. There is nothing in the meeting minutes of the Planning Commission or Board proceedings which indicate that the Miravichs or the any of the other named appellants received notice of, or attended, those meetings.
The appellants timely filed their land use appeal to the Berks County Court of Common Pleas. The Township then sought to dismiss the appeal, asserting that the appellants had no standing to appeal the Board’s action because they had not appeared during any of Township proceedings. The Common Pleas Court found in favor of the Township and dismissed the appeal.
The Commonwealth Court reversed, noting that the Common Pleas Court, in denying the standing of the appellants, could only point to case law relating to appellant standing from Zoning Hearing Board decisions. The case law with respect to those matters is well settled, making clear that an appellant has no standing to appeal if it does not formally appear or object at the zoning hearing board proceedings.
The Commonwealth Court in Miravich found that standing consists of two concepts:
- “substantive standing” examining whether the litigant has “sufficient interest in the outcome of the litigation to be allowed to participate,” and
- “procedural standing”, i.e, “[w]hether one has asserted his right to participate sufficiently early.”
Substantive standing is typically found where a party is aggrieved, or in other words, where the party has a direct, immediate and substantial interest in the application. A neighbor’s proximity to the subject property, such as existed here, will normally satisfy that requirement. It is the procedural question which separates the subdivision/ land development approval matters before the Planning Commission and the Board of Supervisors from the Zoning Hearing Board proceedings.
The Pennsylvania Municipalities Planning Code treats Zoning Hearing Board hearings as much more formal proceedings, requiring that, among other things, they conform to specific procedural requirements including the posting of the subject piece of property, the right of all parties to be represented by counsel and present evidence and arguments, and that a stenographic record of the hearing be kept. The MPC also defines those who will be afforded party status before the Zoning Hearing Board.
In contrast, applications for subdivision/ land development proceed down a much more informal track. The MPC even specifically states that public hearings are not required. As a result, the Commonwealth Court found that, “because similar procedural protections are not required in subdivision and land development applications, it will be manifestly unfair, if not a denial of due process, to impose such a stringent rule as a prerequisite to subdivision and land development appeals.” Consequently, the fact that the Miravichs and the other appellants did not appear at or participate in the Township meetings on the application was not a bar to their appeal of the Board’s decision. The Commonwealth Court determined that such an appellant need only satisfy the “party aggrieved” standard.
The Court does note however that if the Board of Supervisors had voluntarily followed the procedural requirements imposed by the MPC on a Zoning Hearing Board matter, than the Commonwealth Court would have agreed with the Court of Common Pleas that the appellants would have had to appear during the proceedings in order to appeal and would have been subject to the Leoni standards.
As a result of this decision, a developer can no longer take for granted the fact that the absence of participants at subdivision/ land development proceedings before the Township will preclude a viable appeal from the decision of the Township on that application. The prudent developer should consider waiting the requisite appeal period from the issuance of that Township decision before proceeding with the project and confirm that no appeal was filed.
Whether the Commonwealth Court’s decision has or will be appealed to the Supreme Court of Pennsylvania is unknown as of the date of this writing.