Neighbors Have Standing to Challenge Zoning Board Decision in Landfill Fight
Ryan Boland Published in The Legal Intelligencer
As published in the Legal Intelligencer
In Friends of Lackawanna v. Dunmore Zoning Hearing Board, 2018 Pa. Commw. LEXIS 157 (Pa. Commw., May 7, 2018), the court reversed the decision of the zoning board and trial court, which held that neighbors objecting to a landfill’s zoning approval did not have standing to file an appeal.
The controversy began when, in connection with a proposed expansion of the landfill, the landfill owner filed a request for a preliminary opinion whether a zoning ordinance’s height restriction applied to the height of trash in a landfill. The zoning officer issued an opinion that a building height limitation did not apply to the height of a landfill, as the landfill did not have a roof supported by columns or walls. A nonprofit called the Friends of Lackawanna (FOL) and three homeowners objected to the proposed landfill expansion and appealed the decision to the Dunmore Zoning Hearing Board. The individual objectors were members of the nonprofit and lived within approximately a quarter-mile to a half-mile from the landfill.
At a hearing before the zoning board, the individual objectors all testified that they can smell the landfill from their property. One of the objectors testified that the landfill caused constant dust and that he has seagull droppings all over his property. The objectors acknowledged that there was a waste transfer facility in close proximity to their properties. After hearing evidence on standing, the zoning board held that the objectors lacked standing to file an appeal. The basis of the zoning board’s decision was that: the individual objectors did not live in or own property adjacent to the landfill, and they did not establish harm to any pecuniary interest; the individual objectors’ complained of injuries were not substantial, direct and immediate, which would give them standing; aesthetic concerns are not equated with substantial interest; FOL did not own or occupy property in the municipality; FOL was formed solely to oppose the landfill’s expansion; FOL’s interest is no different than those of all other citizens; and FOL did not have derivative standing because the individual objectors lacked standing.
The objectors appealed to the trial court by filing a 377-paragraph, 53-page notice of land use appeal, which included 174 paragraphs of background. The landfill owner filed a motion to strike/quash the appeal on the basis the appeal did not meet the concisement requirements of the municipalities planning code (MPC). The trial court rejected the argument that the objectors failed to file a concise statement of appeal required by Section 11003-A(a) of the MPC, 53 P.S. Section 11003-A(a). The trial court noted that although the appeal was voluminous, it could still be distilled. The trial court did not take any additional evidence and agreed with the zoning board that the objectors lacked standing.
More specifically, the trial court found that the FOL’s interest was no different than the interest generally shared by the public and that the FOL’s purpose of opposing the landfill expansion was not enough alone to confer standing. Further, the trial court held that the individual objectors lacked standing because they failed to demonstrate a direct, immediate, and substantial interest in the landfill expansion. The trial court noted that the individual objectors lived a half-mile from the proposed expansion area and were separated from it by a major highway interchange. Although the trial court accepted that the individual objectors all complained of odors and one complained of dust and bird droppings, it still found they lacked standing.
The trial court reasoned that the facts were very similar to Armstead v. Zoning Board of Adjustment, 115 A.3d 390 (Pa. Commw. 2015), wherein the Philadelphia Court of Common Pleas determined that individual residents and an organization formed to oppose billboards in the city of Philadelphia, lacked standing to challenge the zoning board’s granting of a variance to change existing billboards from vinyl to digital. In Armstead, the nearest objector lived a block and a half from the billboard and the Commonwealth Court held that the objector lived too far away to confer standing. The trial court did not take any additional evidence, so the Commonwealth Court’s standard of review was an abuse of discretion.
The Commonwealth Court noted that in order to have standing, a person “must have a direct interest that is adversely affected by the challenged action.” It stated that a person’s interest could be sufficient to intervene in zoning litigation by reason of proximity in location. The court explained that a substantial interest is one in which there is a discernable adverse effect to some interest that is different than the abstract interest possessed by all citizens. In other words, a direct interest requires a showing of harm to a party’s interests, but not necessarily a pecuniary interest. The court explained that the immediate interest must be more than a remote consequence and centers on a causal nexus between the action complained of and the injury to the challenging party. In sum, to have standing, a party must demonstrate that the complained of action personally harms their interest in a way that is greater than that of another citizen. The Commonwealth Court noted that in order for FOL to have derivative standing, it needed to establish that at least one of its members is suffering immediate or threatened injury as a result of the challenged action.
In reversing the trial court, the Commonwealth Court noted that the individual objectors all live within a quarter-mile to a half-mile from the landfill. Further, the individual objectors complained of pungent odors of rotting garbage, as well as dust, bird droppings, and truck traffic. The Commonwealth Court found that the discernible effects on the individual objectors’ use and enjoyment of their properties were not merely aesthetic concerns, as was the situation in prior cases involving electronic or illuminated billboards. It explained that odors, dust, bird droppings and truck traffic were not mere nuisances or annoyances, but were instead discernable adverse effects that were legitimate concerns about air quality and health.
The Commonwealth Court distinguished other cases, where persons purchased their properties after the use in question had started. It noted that although the landfill was already operating at the time the individual objectors purchased their homes, the proposed expansion would continue if not exacerbate their harm by allowing the landfill to operate for another 46 years. Thus, the expansion of the existing use of the landfill could cause considerable harm to the individual objectors.
The Commonwealth Court also briefly discussed the case of Grant v. Zoning Hearing Board, 776 A.2d 356 (Pa. Commw. 2001), wherein the court had previously addressed the issue of standing. In Grant, the Commonwealth Court addressed the issue of procedural standing of a third-party appealing a zoning board hearing where they clearly had a direct, immediate, pecuniary and substantial interest in the complained of activity to confer substantive standing upon them. The court explained that in Grant, the aggrieved party had satisfied the element of procedural standing because it appeared before the zoning board. It disregarded the fact that the aggrieved party had not formally entered an appearance, noting that the average person would not know they needed to enter an appearance and that the zoning board should have explained to the testifying aggrieved party of that they should enter their appearance.
Finally, as to the 53-page, 377-paragraph notice of land use appeal, the Commonwealth Court explained that the cases relating to a voluminous Pa.R.A.P. 1925(b) statement were inapplicable, because the Pennsylvania Rules of Appellate Procedure do not govern practice in the courts of common pleas. Although Section 11003-A(a) of the MPC provides that land use appeals should include an appeal notice “which concisely sets for the ground on which the appellant relies,” the court held that appeal should not be dismissed because the objectors had not engaged in bad-faith or misconduct. The court noted that although there is precedent for dismissing a vague notice of appeal, the parties did not provide it with any authority supporting that an appeal should be dismissed for being too detailed.
In sum, when a property owner is affected by pungent odors, dust, bird droppings and increased truck traffic, they have standing to oppose a zoning board decision. The Commonwealth Court did not address the factual contradiction noted by the trial court—that there was a waste transfer facility even closer than the landfill at issue—and that it may have been responsible for the odors and birds. The Commonwealth Court’s citation to Grantreminds developers that if a neighbor appeals a decision, they can challenge their procedural standing if the neighbor did not formally appear at the zoning board hearing to challenge the proposed variance. The requirement that individuals cannot be heard on appeal if they had notice of a public hearing and failed to appear and object is well settled and has been more thoroughly explained in Miravich Township of Exeter, 6 A.3d 1076 (Pa. Commw. 2010), and Leoni v. Whitpain Township Zoning Hearing Board, 709 A.2d 999 (Pa. Commw. 1998). See also Section 10908(3) of the MPC, 53 P.S. Section 10908 (defining who the parties are to a zoning board hearing).
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