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HomeMy WebLinkAbout03-2567 CivilIN RE: TIMOTHY MARET AND SHERRY MARET, AND MARTIN BIGLER, d/b/a ALLSPORTS GALLERY PLUS, APPELLANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, APPELLEE SHIPPENSBURG PROPERTIES, L.P., INTERVENOR 03-2567 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., August 19, 2003:-- On March 7, 2003, Shippensburg Properties, L.P., intervenor herein, applied for a conditional use permit from the Board of Supervisors of Shippensburg Township, Cumberland County, appellee herein. Intervenor proposed building a shopping center with more than 10,000 square feet of floor space in a C-G Commercial General zoning district. Section 601 of the Shippensburg Township Zoning Ordinance provides: A building may be erected or used, and a lot may be used or occupied, for any of the following purposes and not other, subject to the Special Design Requirements of Section 603 and provided that in the case of a shopping center or a group of other permitted uses on a lot, or a single use with a floor area of over ten thousand (10,000) square feet, the special application and plan requirements of Section 913 shall apply and each such use and plan shall be subject to review and approval as a conditional use. (See Section 1400.9) Section 1400.9 of the Zoning Ordinance defines a conditional use as: 03-2567 CIVIL TERM A use which may be allowed or denied by the Township Supervisors pursuant to public notice and hearing and recommendations by the Planning Commission and pursuant to expressed standards and criteria set forth in this Ordinance, provided that the plan for any such use also shall comply with any application requirements of the Land Subdivision and Control Ordinance of the Township. In allowing a conditional use, the Supervisors may attach such reasonable conditions and safeguards, in addition to those expressed in this Ordinance, as deemed necessary to implement the purposes of this Ordinance. A public hearing was held on the application on April 5, 2003. Sherry Maret, on behalf of herself and her husband Timothy Maret, voiced objections to the grant of a conditional use. The Board of Supervisors met on May 3, 2003, and approved the application with conditions. Sherry Maret, Timothy Maret and Martin Bigler d/b/a AIIsports Gallery Plus filed a Notice of Land Use Appeal from the decision of the Board.1 Intervenors filed a motion to dismiss the appeal for lack of standing, and a petition to require appellants to post bond as a condition of proceeding. Appellants filed a motion to leave to amend the Notice of Land Use Appeal "to conform to the evidence," and a motion to strike the petition for a bond upon a claim that intervenor does not have an ownership interest in the land for which the conditional use permit was granted. A hearing was conducted on July 25, 2003. After testimony was taken, and it was apparent that intervenor did have an ownership interest in the subject land, appellants withdrew that motion. The grant of a conditional use by a municipal governing body is administrative 1 Tracy Wagner and Joseph Gehres d/b/a J and J Computers were also appellants. They have filed a motion to withdraw their appeal which has been granted. -2- 03-2567 CIVIL TERM rather than a legislative action to which the Local Agency Law applies. Nernberg v. City of Pittsburgh, 153 Pa. Commw. 219 (1993). The Local Agency Law at 2 Pa.C.S. Section 752, provides: Any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure), (Emphasis added.) In Nernberg, the Commonwealth Court of Pennsylvania, noting that to have standing to appeal under Section 752 from the grant of a conditional use requires a direct interest of an aggrieved person, stated: By asserting that they own property in the vicinity of the proposed conditional use, the Nernbergs have asserted an interest beyond the common interest of all citizens that the law be obeyed, William Penn; but they must also show that the interest was harmed8 and that it is one which the law is intended to protect. "[S]tanding will be found more readily where protection of the type of interest asserted is among the policies underlying the legal rule relied upon by the person claiming to be aggrieved." William Penn, 464 Pa. at 198, 346 A.2d at 284. 8A person aggrieved "must have a direct interest that is adversely affected by the action which he seeks to challenge .... An essential element of standing.., is the requirement that a person be adversely affected by the challenged action." Mosside Associates v. Zoning Hearing Board, 70 Pa. Commonwealth Ct. 555, 562, 454 A.2d 199, 203 (1982) (emphases added). In holding that the trial court properly found that the Nernbergs had not shown an injury to an alleged interest which would give them standing, the Court concluded: The zoning ordinance is not part of a regulatory scheme to protect against competitive injury, and thus competition is not the kind of direct injury which gives rise to standing in a zoning case. -3- 03-2567 CIVIL TERM In the case sub judice, appellants allege in their land use appeal that the procedures used by the Shippensburg Board of Supervisors in granting the conditional use violated state law and due process. The property of the Marets' is located in adjacent Shippensburg Borough approximately .9 miles from the proposed shopping center and the Bigler property is similarly located approximately 1.5 miles away. As in Nemberg, appellants have not presented evidence, nor is there anything in the record before the Board of Supervisors, that shows that the grant of the conditional use has caused an injury to their interests which would give them standing as aggrieved persons to appeal. Notwithstanding, citing Grant v. Zoning Hearing Board of Penn Township, 776 A.2d 356 (Pa. Commw. 2001), the Marets maintain that they have standing because their objections to the application for the conditional use were voiced at the public hearing on April 5, 2003. Grant was an appeal from the grant of a special exception by the Zoning Hearing Board of Penn Township. Their standing was challenged. At the hearing before the Board, the Grants testified under oath, voiced objections to the special exception and raised questions which the Board then posed to appellants who were seeking to construct an electric generating facility. Citing Baker v. Zoning Hearing Board of West Goshen Township, 27 Pa. Commw. 602 (1976), that individuals who have party status before a zoning hearing board may appeal to the trial court, the Commonwealth Court concluded: Allegheny argues that Mr. and Mrs. Grant were not a party before the Board because they did not formally enter an appearance before the -4- 03-2567 CIVIL TERM Board. However, as the trial court stated, which determination Allegheny does not dispute, the Board does not have an established policy that would allow those in attendance at the hearing to declare their status as parties to the hearing. As stated in Orie v. Zoning Hearing Board of the Borough of Beaver, 767 A.2d 623, 624, n. 4 (Pa. Cmwlth.2001), the average person would be unfamiliar with the rule requiring a written appearance. The better practice would be for the board to explain, on the record any steps a citizen must take to preserve his or his appeal rights. Here, Mr. and Mrs. Grant's actions before the Board were substantive. They testified under oath, voiced objections to the special exception and raised questions, which questions the Board then posed to Appellants. In addition to being parties before the Board and therefore aggrieved by the adverse decision, Mr. and Mrs. Grant are also aggrieved in that they have a direct, immediate, pecuniary and substantial interest in this matter because their property is 6600 feet from the proposed site and wind and sound from the proposed site flow to their land. As such, we agree with the trial court that the Grants, who were parties to the hearing, had standing to appeal the Board's decision. In the present case, the Marets voiced objections to the grant of the conditional use at the public hearing on April 5, 2003. However, we do not read Grant as implying that voicing objections at a public hearing before a governing body on an application for a conditional use, without being an aggrieved person with a direct interest in the adjudication, gives an objector standing to appeal under Section 752 of the Local Agency Law. Perceived competitive injury to Bigler's store is not sufficient to give rise to standing. Nernberg, supra. The Marets and Bigler failed to present evidence before this court or before the Board of Supervisors that they had a direct interest in the adjudication or were aggrieved by the grant of the conditional use. Therefore, they do not have standing to appeal.: : This resolution makes it unnecessary to rule on the motion of appellants to amend this appeal to conform to the evidence. -5- 03-2567 CIVIL TERM The Municipalities Planning Code at 53 P.S. 101003-A(d) provides: If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. After the petition for posting a bond is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the landowners to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for posting a bond. (Emphasis added.) Because we find that the Marets and Bigler, the only current appellants, do not have standing, we do not have to examine the merits of their appeal to determine if it is frivolous so as to warrant the grant of intervenor's petition to post a bond. Accordingly, the following order is entered. AND NOW, this ORDER OF COURT day of August, 2003, IT IS ORDERED that Timothy Maret, Sherry Maret and Martin Bigler, d/b/a AIIsports Gallery Plus, lack standing to file this appeal; therefore, the appeal IS DISMISSED. By the Court, Edgar B. Bayley, J. -6- 03-2567 CIVIL TERM Michael D. Klein, Esquire For Appellants Ron Turo, Esquire For Appellee Marc B. Kaplan, Esquire For Intervenor :sal -7- IN RE: TIMOTHY MARET AND IN THE COURT OF COMMON PLEAS OF SHERRY MARET, AND CUMBERLAND COUNTY, PENNSYLVANIA MARTIN BIGLER, d/b/a ALLSPORTS GALLERY PLUS, APPELLANTS V. SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS, APPELLEE V. SHIPPENSBURG PROPERTIES, L.P., INTERVENOR 03-2567 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this day of August, 2003, IT IS ORDERED that Timothy Maret, Sherry Maret and Martin Bigler, d/b/a AIIsports Gallery Plus, lack standing to file this appeal; therefore, the appeal IS DISMISSED. By the Court, Edgar B. Bayley, J. 03-2567 CIVIL TERM Michael D. Klein, Esquire For Appellants Ron Turo, Esquire For Appellee Marc B. Kaplan, Esquire For Intervenor :sal