Agenda - Planning Commission - 02/06/2014

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December 25, 2013 I Volume 7 I Issue 24 Zoning Law Bulletin terminated the proceedings. Following Holt's withdrawal, the Townships re- pealed Ordinance No.1983 in its entirety and enacted a new ordinance to cure any prior procedural defects. Ordinance No.2007 was enacted June 18, 2007. Since Ordinance No.2007 reenacted Ordinance No.1983 verbatim, the Neighbors sought to continue Holt's challenge. The Board determined that the. MPC distinguishes "party appellants" from "parties to the hearing," and that the only "party appellant" (i.e., here, Holt) had withdrawn. Accordingly, the Board concluded that the neighbors did not have the right to continue the challenge. The Neighbors appealed to the trial court. The court reversed, finding no distinction between party appellants and parties to the hearing. The court instructed the Board to permit the Neighbors to continue Holt's challenge. Toll Brothers, Inc. ("Toll Brothers"), a developer of land in the impacted district, had intervened in the case. Not wanting the challenge to the ordinance to continue, Toll Brothers appealed. The Commonwealth Court affirmed the trial court's decision. It found that the MPC does not specifically state the rights of parties to the hearing are contingent on the existence of the party ap- pellant remaining in the action. Toll Brothers again appealed. Among other things, Toll Brothers argued that the challenge to the ordinance should be dismissed because the neighbors never filed their own application to challenge any ordinance. The Neighbors argued that a landowner who participates as a "party to the hearing" has the right to continue an active challenge to a zoning ordinance even if the original appellant withdraws its appeal. DECISION: Judgment of Commonwealth Court reversed. The Supreme Court of Pennsylvania disagreed with the Neighbors and agreed with the Toll Brothers. The court held that participating in a challenge as "parties to the hearing" —as the Neighbors here had done —did not confer the right to continue that challenge when the original challenger withdrew. In so holding, the court noted that the MPC governs challenges to zoning ordinances and creates at least two categories of participants that may be involved when an ordinance is challenged: "Parties appellant before the board" may become a party appellant by filing a written appeal with the board. (53 P.S. § 10913.3.) "Parties to the hearing" may participate in the hearings and includes "any person affected by the application who has made timely appear- ance of record before the board, and any other person including civic or com- munity organizations permitted to appear by the board." The court found there were "clear distinctions" between "parties to the ap- peal" and "parties to the hearing." The former, said the court, must be ag- grieved by the ordinance; the latter needed only to be "affected by the applica- tion" (namely, the aggrieved party's challenge). The court noted that the latter therefore could not exist without the former. Indeed, further noted the court, a party to the hearing need not support the parties to the appeal at all. They could speak in favor of the challenge or against the challenge. By definition their interest would be in the process, not the specifics of the challenge itself. Moreover, noted the court, if "parties to the appeal" and "parties to the hearing" were deemed to have the same rights in the challenge, any settlement 10 © 2013 Thomson Reuters