Agenda - Planning Commission - 01/07/2016

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Zoning Bulletin November 25, 2015 1 Volume 9 1 Issue 22 whether an adjoining property owner sufficiently participated in a zoning board hearing so as to establish standing (i.e., the legal right) to appeal the zoning determination. The Background/Facts: On land in the City of Easton (the "City"), Pegasus Tower Co., Ltd. ("Pegasus") sought to replace a pre-existing monopole with a 195 -foot high monopole, containing 18 communication panels. Pegasus applied to the City's Zoning Hearing Board (the "ZHB"). Specifically, Pegasus sought to convert one nonconforming use to another nonconfoiuiing use and an attendant variance. Thomas Walters ("Walters") owned property adjoining the land on which Pegasus' tower was proposed. Walters appeared at the hearing on Pegasus' application and was referred to at the hearing by the ZHB as a "party." At the hearing, Walters and Pegasus presented to the ZHB a joint stipulation. That joint stipulation provided that if the ZHB granted Pegasus' application, Pegasus would provide additional screening near Walters' property in order to ,help obstruct the view of the monopole. Also at the hearing, Walters introduced photographic evidence that contradicted testimony from Pegasus' engineer. Contrary to the engineer's testimony, Walters contended that the proposed tower would be visible from neighbor- ing properties and would negatively affect neighboring properties. Ultimately, the ZHB granted Pegasus' requested relief. The ZHB concluded; among other things, that the monopole would not have an adverse effect on or alter the essential character of the neighborhood. Walters appealed. Pegasus asked the court to dismiss Walters' appeal for lack of standing (i.e., lack of the legal right to bring the action). Pegasus argued that Walters failed to sufficiently object and/or participate during the ZHB proceedings and therefore lacked standing to bring the appeal. The trial court denied Walters appeal. It concluded that Walters lacked standing to appeal because Walters failed to object to Pegasus' application before the ZHB. The court found that Walters "did not appear as [a party] and did not oppose the application in any manner." Walters again appealed. Walters argued that his participation in the ZHB proceedings conferred him with standing to appeal to the trial court. DECISION: Judgment of Court of Common Pleas reversed, and matter remanded. The Commonwealth Court of Pennsylvania agreed with Walters, and held that he had standing to appeal the ZHB's determinations because he had sufficiently participated during the ZHB proceedings and had acquired the status of a party. The court explained that a "person aggrieved" could appeal a zoning approval. "To be a `party aggrieved' so as to have standing to appeal a zon- ing board decision," further explained the court, "a person must (1) have actively participated as a party in the proceedings before the zoning board; and (2) be directly and adversely affected by the zoning board's decision." The court found that Walters met the second prong of the standing test. © 2015 Thomson Reuters 3